U.S. v. Walker

• Decision Date: 13 January 2005
• Docket Number: No. 04-1223.,04-1223.
• Citation: 393 F.3d 842
• Parties: UNITED STATES of America, Appellee, v. Demarko S. WALKER, Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

393 F.3d 842

UNITED STATES of America, Appellee, v. Demarko S. WALKER, Appellant.

No. 04-1223.

United States Court of Appeals, Eighth Circuit.

Submitted: October 19, 2004.

Filed: January 13, 2005.

B. John Burns, argued, Des Moines, IA, for appellant.

Richard D. Westphal, Asst. U.S. Atty., Rock Island, IL (Richard E. Rothrock, Asst. U.S. Atty., Des Moines, IA, on the brief), for appellee.

Before MORRIS SHEPPARD ARNOLD, BOWMAN, and RILEY, Circuit Judges.

RILEY, Circuit Judge.

After a jury convicted Demarko Walker (Walker) of being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1), the district court¹ entered judgment and sentenced Walker to 112 months imprisonment. Walker appeals, arguing the district court erroneously admitted certain testimony at trial, and erroneously denied Walker's post-trial motions for judgment of acquittal or for a new trial. We affirm.

I. BACKGROUND

On May 13, 2003, Officer Chad Cornwell (Officer Cornwell) of the Des Moines (Iowa) Police Department (DMPD) pulled over a Mercury Grand Marquis (Mercury) for speeding, for not displaying a front license plate, and for having a cracked windshield. Officer Comwell talked with the driver of the Mercury, Otto Gipson (Gipson), who had no identification and said his driver's license was suspended. Officer Cornwell then asked Walker, who was the front-seat passenger and only other occupant, to identify himself. Walker identified himself as John Smith, and gave Officer Cornwell a false date of birth and a false social security number. While Officer Cornwell returned to his police cruiser to check the information given to him, two other DMPD police officers arrived.

Officer Cornwell informed one of the newly arrived officers, Officer Stewart Barnes (Officer Barnes), that Gipson was driving on a suspended license, the passenger may have provided false information, and a beer bottle was on the floorboard between the driver and passenger. Officer Barnes approached the Mercury and asked Gipson to step out of and behind the vehicle. While another officer kept Gipson under observation at the rear of the vehicle, Officer Barnes talked to Walker, who remained in the passenger seat. Officer Barnes asked Walker a few questions, and Walker still did not provide his real identity, age or date of birth. Officer Barnes removed the beer bottle from the Mercury and informed Walker there was a problem.

Officer Cornwell then learned Walker had given false information, informed Officer Barnes of this finding, and approached the passenger-side of the Mercury. As Officer Cornwell approached the vehicle, Officer Barnes told Officer Cornwell that Walker needed to be removed from the vehicle. Walker then slid across to the driver's seat, put the car in gear, and sped away. Officer Barnes grabbed onto the vehicle as it sped off, and was dragged to the next intersection while yelling at Walker to stop the vehicle. As the Mercury approached the intersection, Walker slowed down and told Officer Barnes to let go. When Walker sped up again, Officer Barnes let go and hit the pavement.

Lieutenant Leesa Shoemaker (Lieutenant Shoemaker), a veteran of over eighteen years with the Polk County Sheriff's Office, received an emergency radio broadcast that a DMPD officer was down, and that the fleeing Mercury was in close proximity to her patrol vehicle. When Lieutenant Shoemaker spotted the Mercury swerving in traffic, she followed it in her marked Ford Explorer (Explorer). Lieutenant Shoemaker engaged her emergency lights and siren, but the Mercury accelerated, running stop signs and a stop light. Walker drove the Mercury 70 miles per hour through a residential area with a speed limit of 25 miles per hour. While driving between 60 and 70 miles per hour Walker twice leaned over to the passenger-side of the vehicle, causing Lieutenant Shoemaker to lose sight of Walker.

Walker then ran a red light at another intersection and struck a van. Walker exited the Mercury and fled on foot. Lieutenant Shoemaker continued to pursue Walker in her Explorer. After Walker ran behind a residence, Lieutenant Shoemaker exited her Explorer and pursued Walker on foot. Finally, Lieutenant Shoemaker caught Walker and forced him to the ground. Lieutenant Shoemaker held Walker until DMPD officers arrived to assist, at which time she transferred custody of Walker to them.

Lieutenant Shoemaker returned to the intersection where Walker collided with the van. Based on Walker's movements during the chase, Lieutenant Shoemaker testified she believed Walker had a gun in the Mercury. When Lieutenant Shoemaker reached the Mercury, she told a DMPD officer "there's a gun in that car." The DMPD officer and Lieutenant Shoemaker then searched the Mercury, finding a firearm in the front passenger-side "between the seat frame where the seat bolts into the floorboard and the floorboard." The gun was fully loaded, but contained no usable fingerprints. An empty beer bottle and a portable CD player were found on the right front floorboard.

Shortly after Walker was arrested, DMPD Detective Terry Mitchell (Detective Mitchell) interviewed Walker. Walker told Detective Mitchell he owned the Mercury and also admitted lying about his name, because he believed there was an arrest warrant out on him. Walker said an officer bent down to look under the seat when the officer told Walker his age and date of birth did not add up. Walker told Detective Mitchell he then moved behind the wheel and drove off, because he had given false information and because he thought he was going to be arrested based on his belief there was an outstanding arrest warrant on him. According to Walker's parole officer, an arrest warrant had been issued. Walker asserted he stopped at the intersection and asked the police officer who was hanging onto the Mercury to please let go, which the officer did. Finally, Walker told Detective Mitchell no guns or contraband were in the Mercury.

Walker had purchased the Mercury a day earlier from Clifton Easley (Easley), who had known Walker for five years. Easley's fiancee is Walker's first cousin. Easley had obtained the Mercury from a used-car business ten days earlier. After acquiring the Mercury, Easley thoroughly cleaned the interior, including vacuuming and shampooing the carpet. Easley also repaired the floorboard. Easley claimed he never saw a firearm inside the Mercury. Easley previously had been convicted of aggravated domestic abuse with the intent to inflict serious injury while displaying a weapon.

The government charged Walker with being a felon in possession of a firearm. The parties stipulated (1) the firearm was a functional Baikal/Imez .380 pistol that had been manufactured outside of Iowa and had traveled in interstate commerce, and (2) Walker had been convicted of a felony. Walker made a pretrial motion in limine to preclude Lieutenant Shoemaker from testifying she believed Walker may have been reaching for a firearm while leaning toward the passenger seat and she told another officer at the scene "there's a gun in that car." Walker argued such testimony involved speculation and hearsay. The district court denied the motion.

At trial, Gipson, who is Walker's brother-in-law, testified he did not know a firearm was in the Mercury, and he did not see a firearm in the Mercury. Andre Bomar who is Walker's friend and had ridden in the Mercury, testified he never saw a firearm in the Mercury nor had he and Walker ever discussed a firearm. When Lieutenant Shoemaker testified at trial that she told another police officer at the scene "there's a gun in that car," Walker objected on the ground the statement was based on speculation, but the district court overruled the objection and allowed the jury to consider the statement.

After a two-day trial, a jury found Walker guilty. During trial and after trial, Walker moved for judgment of acquittal, arguing the government had not proved beyond a reasonable doubt Walker "had the intent to exercise dominion and control over a firearm, which is an essential element of the charge." Walker also contended "[t]here hasn't been any evidence that he had knowledge of [the firearm's] presence in the vehicle." In the alternative, Walker moved for a new trial. Denying Walker's motions for judgment of acquittal and for a new trial, the district court entered judgment against Walker and sentenced him to 112 months imprisonment.

On appeal, Walker contends he is entitled to judgment of acquittal because "the evidence [at trial] was insufficient for a rational jury to find beyond reasonable doubt that he knowingly and intentionally possessed the handgun." In a similar vein, Walker contends the district court abused its discretion in denying Walker's motion for a new trial, because the jury's verdict was against the weight of the evidence. Finally, Walker contends the district court abused its discretion by allowing Lieutenant Shoemaker to testify at trial "on the ultimate issue of fact," that she believed Walker was leaning over to the Mercury's passenger-side to retrieve a firearm.

II. DISCUSSION

A. Sufficiency of the Evidence

Walker argues the district court erroneously denied his motion for judgment of acquittal, because there was insufficient evidence to support the guilty verdict for being a felon in possession of a firearm. Walker "confronts a high hurdle with this argument, as we must employ a very strict standard of review on this issue." United States v. Cook, 356 F.3d 913, 917 (8th Cir.2004). We "view the evidence in the light most favorable to the government, resolving evidentiary conflicts in favor of the government, and accepting all reasonable inferences drawn from the evidence that support the jury's verdict." Id. (citation omitted). "We may reverse only if no reasonable jury could have found [Walker] guilty." Id.

To convict Walker under 18 U.S.C. § 922(g)(1),² the government had to prove beyond a reasonable doubt: "(1) [Wa...