U.S. v. Wilson

• Citation: 135 F.3d 291
• Decision Date: 29 January 1998
• Docket Number: Nos. 95-5581,95-5582 and 95-5839,s. 95-5581
• Parties: 48 Fed. R. Evid. Serv. 883 UNITED STATES of America, Plaintiff-Appellee, v. Norman Harrington WILSON, a/k/a Stormin Norman, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. William David WILSON, a/k/a Pudgie, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. William Correy TALLEY, a/k/a Rat Rat, Defendant-Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (4th Circuit)

Page 291

135 F.3d 291

48 Fed. R. Evid. Serv. 883

UNITED STATES of America, Plaintiff-Appellee, v. Norman Harrington WILSON, a/k/a Stormin Norman, Defendant-Appellant.

UNITED STATES of America, Plaintiff-Appellee, v. William David WILSON, a/k/a Pudgie, Defendant-Appellant.

UNITED STATES of America, Plaintiff-Appellee, v. William Correy TALLEY, a/k/a Rat Rat, Defendant-Appellant.

Nos. 95-5581, 95-5582 and 95-5839.

United States Court of Appeals Fourth Circuit.

Argued June 7, 1996.

Decided Jan. 29, 1998.

ARGUED: Rudolph Alexander Ashton, III, New Bern, NC, for Appellant Norman Wilson; Wayne Buchanan Eads, Raleigh, NC, for Appellant William Wilson; Alexis Christopher Pearce, Raleigh, NC, for Appellant Talley. John Howarth Bennett, Assistant United States Attorney, Raleigh, NC, for Appellee. ON BRIEF: Janice McKenzie Cole, United States Attorney, Raleigh, NC, for Appellee.

Before RUSSELL, WIDENER, and MICHAEL, Circuit Judges.

Affirmed in part, vacated and remanded in part, and vacated and remanded in part with instructions by published opinion. Judge MICHAEL wrote the opinion, in which Judge DONALD S. RUSSELL and Judge WIDENER joined.

OPINION

MICHAEL, Circuit Judge:

Norman Wilson, his brother William Wilson, and William Talley appeal their convictions for several offenses relating to drug trafficking. We vacate Talley's convictions and remand his case for a new trial because of prosecutorial misconduct during closing argument. Talley was not on trial for murder, and the evidence was insufficient to permit the inference that he had committed murder. Nevertheless, the prosecutor, in an eleventh hour surprise at summation, told the jury that Talley had murdered a man, and that improper argument prejudiced Talley to the point of denying him a fair trial. As to Norman Wilson we remand with instructions to vacate his conspiracy conviction and its related sentence because conspiracy is a predicate offense for his continuing criminal enterprise conviction. We affirm Norman Wilson's other convictions and both of William Wilson's convictions.

I.

The conspiracy count in the thirteen-count indictment charged that Ronald Perkins and appellant Norman Wilson "supervised and controlled an organization known as the 'Grove View Terrace Court Boys,' which controlled the distribution of crack cocaine in the Grove View Terrace housing project" in Fayetteville, North Carolina, from 1988 until late 1994. ¹ Perkins and Norman Wilson were also charged with operating a continuing criminal enterprise (CCE) through an extended series of drug trafficking violations. The eleven remaining counts charged other alleged co-conspirators, including appellants William Wilson and Talley, with various drug or weapons violations.

Perkins began cooperating with the government after he was arrested. He signed a plea agreement and testified, as the government's main witness, against the two Wilsons and Talley, who were tried together. Perkins testified that he and Norman Wilson were partners and co-managers of the Court Boys drug ring. Perkins was responsible for obtaining wholesale supplies of powder cocaine, and Norman Wilson was in charge of cooking the cocaine into crack, packaging it, and distributing it to street dealers. Perkins identified Talley as one of the organization's street dealers, and he said that Norman Wilson "sometimes" gave William Wilson crack to sell. Other witnesses, who admitted their involvement with the Court Boys organization and who were testifying for the government under plea agreements, implicated the Wilsons and Talley in varying degrees. We will discuss the evidence in greater detail as it becomes pertinent to the issues raised.

The jury convicted Norman Wilson of operating a CCE, see 21 U.S.C. § 848, conspiracy to possess with intent to distribute crack cocaine, see 21 U.S.C. § 846, and using or carrying a firearm during and in relation to a drug trafficking crime, see 18 U.S.C. § 924(c). He was sentenced to concurrent life terms on the conspiracy and CCE convictions and to sixty months consecutively on the § 924(c) conviction. William Talley was convicted of conspiracy to possess with intent to distribute crack cocaine and on a § 924(c) firearms violation. In addition, Talley was convicted of possession with intent to distribute crack cocaine, although this was later changed to a powder cocaine conviction. See 21 U.S.C. § 841(a)(1). He was sentenced to concurrent life terms on the conspiracy and possession convictions and to sixty months consecutively on the § 924(c) conviction. William Wilson was convicted of conspiracy to possess with intent to distribute crack cocaine and on a § 924(c) firearms violation. He was sentenced to 300 months in prison for the conspiracy conviction and sixty months consecutively on the firearms conviction. The two Wilsons and Talley now appeal.

II.

A.

We turn first to Talley's main contention. Talley was not on trial for murder, and there was no evidence that he had actually killed anyone. The prosecutor waited until closing argument to contend that Talley had murdered a man in a drug deal that turned sour. Talley asserts that the murder argument, a last-minute surprise that went beyond the evidence, was prosecutorial misconduct that deprived him of a fair trial. We agree.

Two members of the Court Boys drug ring testified about an incident at Grove View Terrace when Talley attempted to make a drug sale from the curb into a car. According to one of the witnesses, the man in the car "snatched something" from Talley. J.A. 283. After the car pulled away, Talley, who had a gun, fired at it. Neither witness was sure that the car had been hit: one said he "d[id] not know if [Talley] hit it," id., and the other said the car "slowed down ... like it had been hit" and then "wobbled on out" or "pulled on out [of] the projects." J.A. 374. The next morning the witnesses saw the car over a bridge embankment ("in the grassy part," J.A. 284) about a half mile from Grove View Terrace. ² The first witness testified that he was "not sure what happened to the guy" in the car. J.A. 284. When the prosecutor asked the second witness, "What happened to the driver?", J.A. 374, the trial judge sustained an objection, and the question went unanswered. As a result, there was no testimony about the driver's fate. Specifically, there was no testimony that a body had been recovered or that the driver of the car had received, much less died of, gunshot wounds.

This lack of evidence of a death, however, did not stop the prosecutor from arguing (over objection) in his initial closing and again in rebuttal that Talley had murdered the driver of the car. Moreover, when the prosecutor made this argument, he knew (but had not disclosed to defense counsel) that another person had been convicted in state court of murdering the same man.

The prosecutor made the murder argument as follows during his initial closing argument:

THE PROSECUTOR: Ladies and gentlemen, you heard Ronald Perkins talk about, as time went by, the escalation in violence in and around Grove View Terrace. You heard him talk about that and how more shootings and craziness--I think he used that word. The guns were just getting worse; it was getting a lot more violent. And you heard Steve Evans [sic] and Kelly Debnam talk to you about one incident in particular involving Mr. Talley. A car came into Grove View Terrace. That was commonplace; people could drive in and drive right up to people, buy crack cocaine.

MR. PEARCE [Counsel for Talley]: Objection.

THE COURT: Overruled.

THE PROSECUTOR: A car came in, and something happened. Most likely, from what the witnesses testified, the person buying the drugs was probably trying to rip Mr. Talley off, get some drugs and not pay him and everything.

MR. PEARCE: Objection, Your Honor.

THE COURT: Overruled.

THE PROSECUTOR: How did Mr. Talley respond? He pulled out his gun, he shot at that car, the car lurched forward a little bit and kind of slowed down, came, turned out of the projects, a couple hundred yards down the street went down the road off the embankment. Ladies and gentlemen, what do you think happened to the driver of that car? What do you think happened to the driver of that car? What happened is that William Talley shot him dead.

MR. PEARCE: Objection, Your Honor.

THE COURT: Overruled.

THE PROSECUTOR: He killed that man that night for ripping him off for drugs.

MR. PEARCE: Objection.

THE COURT: Overruled.

J.A. 519-20.

During his closing argument Talley's lawyer reminded the jury that Talley was not on trial for murder and that there was no evidence of murder. The matter did not end there, however. During the final moments of his rebuttal argument the prosecutor returned to the subject:

THE PROSECUTOR: Two more things to sort of close it up. One is back to Mr. Talley. Ladies and gentlemen, two witnesses have come in here and testified somebody drove into Grove View Terrace, engaged in some sort of transaction with Mr. Talley. The car pulled away, and Mr. Talley fired at the car. The car slowed down, halted, pulled out of the project, and was seen--the car was over in the ditch.

MR. PEARCE: Objection to this whole line, Your Honor. THE COURT: The alleged shooting, is that what you're arguing about?

THE PROSECUTOR: Yes, sir.

MR. PEARCE: Yes, sir.

THE COURT: Overruled.

THE PROSECUTOR: And that car was found several hundred yards or so away, just outside the project, over an embankment. You draw your own conclusions about what happened. Use your common sense, but two witnesses have testified Mr. Talley fired at that car. And then as to what happened to that car or that vehicle right afterwards.

J.A. 561-62.

B.

Our circuit has a two-pronged test for determining whether a prosecutor's misconduct in closing argument " 'so infected the trial with unfairness as to make the resulting conviction a denial of due process.' " Darden v. Wainwright, 477 U.S. 168, 181, 106 S.Ct. 2464,...