United States v. Davis

• Decision Date: 06 July 1977
• Docket Number: No. 76-1708.,76-1708.
• Parties: UNITED STATES of America, Appellee, v. Alfonso DAVIS, Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

557 F.2d 1239

UNITED STATES of America, Appellee, v. Alfonso DAVIS, Appellant.

No. 76-1708.

United States Court of Appeals, Eighth Circuit.

Submitted December 13, 1976.

Decided July 6, 1977.

Rehearing and Rehearing Denied August 3, 1977.

COPYRIGHT MATERIAL OMITTED

Philip S. Resnick, Minneapolis, Minn., for appellant; Bruce Hartigan, Minneapolis, Minn., on the brief.

John M. Lee, Asst. U.S. Atty., Minneapolis, Minn., for appellee; Robert G. Renner, U.S. Atty., Minneapolis, Minn., on the brief.

Before HEANEY and ROSS, Circuit Judges, and VAN PELT, Senior District Judge.^*

Rehearing and Rehearing En Banc Denied August 3, 1977.

VAN PELT, Senior District Judge.

Alfonso Davis appeals his conviction by a jury on four counts of a ten-count indictment.¹ He asks us to find on appeal that:

1. the trial judge² erred in the sentencing procedure because he considered evidence outside the record;

2. defendant was denied his right to counsel because the trial court allowed the prosecutor to interrupt defense counsel's final argument and the prosecutor's final argument itself was objectionable;

3. it was error to admit certain items of evidence during the trial;

4. the search warrant lacked particularity and was not supported by probable cause; and

5. the trial court erred in denying defendant's motion to disclose the identity of the confidential informant who provided information in support of the search warrant.

The facts forming the basis for this indictment are as follows: On November 18, 1975, Drug Enforcement Administration (DEA) agent Donald Bloch purchased approximately twenty-eight grams of heroin from Dennis McDonald, who testified at trial that he was called by Davis and asked to deliver the heroin³ and to collect $2,200.00 for it. McDonald testified he gave the money to Davis, and in return Davis gave him a gram of heroin. This forms the basis for Count I of the Indictment charging a violation of 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2.

Agent Bloch made another purchase of approximately an ounce of heroin on January 20, 1976. This time he was driven to Davis's house by Jarold Mason who made him wait in the car. Bloch paid $2500.00. Mason testified $2000.00 went to Davis, intermediary Isaac Russell received $300.00, and Mason himself kept $200.00. Mason also took out some of the heroin before delivering it to Bloch. This forms the basis for Count II charging a violation of 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2.

Count III alleged possession with intent to distribute approximately 300 grams of marijuana; the jury found Davis not guilty of this offense, but guilty of the lesser included offense of possession. The marijuana was found in a search of Davis's house conducted with a search warrant. Count IV charged a conspiracy between Davis, Mason and McDonald to dispense and distribute controlled substances.

I. SENTENCING

The maximum penalty for a violation of § 841(a)(1) is fifteen years imprisonment and/or a $25,000 fine. The trial court sentenced Davis to the maximum of fifteen years imprisonment on Counts I, II, and IV, the sentences to run consecutively, and imposed a fine of $10,000 on each count. On the Count III violation of § 844(a) the trial court imposed a $5,000 fine and one year imprisonment to run consecutive to the sentences on Counts I, II, and IV. The trial court also gave defendant a special parole term for the rest of his life, with defendant to remain incarcerated until the fines are paid.

Defendant contends on appeal that the trial court considered impermissible factors in determining the sentence. Specifically, he points to the trial court's questioning of defendant at sentencing as to whether he or an associate had threatened any of the witnesses in the case. Also, he complains that the court asked why he kept six loaded guns in his house.

Each sentence is within the statutory limits. The record does not persuade us that the sentence imposed was based on a consideration of either the rumored threats to witnesses or the firearm charges which had been severed. Defendant denied that either he or an associate had threatened any witnesses, and defense counsel claimed he had not heard of any threats. The court replied:

I am just asking the question. You may not, of course, have heard about this. There is a fairly long record of criminal activity, Mr. Davis, as you appreciate. I really think you are beyond any chance at all of rehabilitation.

* * * * * *

At the time of the execution of the search warrant, why did you have six loaded firearms in that house?

Defense Counsel: Your Honor, it seems that those charges haven't been disposed of yet. I would prefer that the defendant didn't answer the question.

The Court: You're correct. Those counts have been severed.

The trial court then immediately pronounced the sentence. The court's comments indicate that he recognized defendant's right to remain silent on the counts relating to firearms. See United States v. Pugh, 509 F.2d 766, 769 (8th Cir. 1975), where the trial judge stated he would not inquire into a case pending against defendant. The trial judge expressed no disbelief when defendant informed him he was not responsible for any threats against witnesses. See Allen v. United States, 136 U.S. App.D.C. 223, 420 F.2d 223, 226 (1969), where the court held that just because the trial judge expressed a belief that witnesses in the case had been threatened it did not follow that he imposed a harsher sentence. See also United States v. Agrusa, 528 F.2d 944, 945 (8th Cir. 1976). The trial court did express concern with defendant's criminal record — which included convictions for beating an intended robbery victim with a pistol (1962), armed robbery (1965), interstate transportation of forged money orders (1970), plus various other charges, some of which dealt with narcotics. The evidence clearly showed defendant to be a distributor of narcotics. We do not feel that the trial court abused its discretion in the sentence imposed.

II. CLOSING ARGUMENTS

The defense called no witnesses. Defense counsel in closing argument urged the jury to question the testimony of the co-conspirators who testified for the government and suggested that they may have framed Davis and that much of the evidence against Davis could be viewed in a light consistent with innocence. Defendant alleges error occurred in the following instances during closing arguments.

A. When defense counsel argued that perhaps Mason and McDonald were selling narcotics to Davis rather than Davis selling to them, the prosecutor objected that there was no evidence in the record to support that argument. The trial court agreed.

B. During the trial mannitol, a substance commonly used to dilute drugs, was introduced into evidence. A DEA agent who searched defendant's residence testified he found it hidden on a shelf behind a kitchen drainpipe. Defense counsel challenged the conclusion that it was a hiding place, stating:

. . . Agent Bloch calls it a hiding place. Now, I don't know. I wasn't there. I don't know what was in there, but it looks like — I mean, some of these items that were removed were inside there also.

T. III at 258. The prosecutor objected stating he believed defense counsel was present during the search. Defendant contends that this constitutes reversible error because the prosecutor went outside the record and asserted his personal knowledge and belief as to the facts not proven.

C. Defense counsel implied that two other individuals besides McDonald, Mason and Davis may have been involved in the conspiracy. The prosecutor objected stating that there was no evidence either of them had participated in any transaction. The court stated:

The jury will trust its own recollection of any evidence if there was evidence of that kind.

T. III at 264.

D. The prosecutor in his closing argument repeatedly stated that any plot to frame Davis existed only in defense counsel's mind.

E. The prosecutor in closing argument claimed that marijuana had not been found in the bedrooms of other persons sharing living quarters with Davis, although the prosecutor knew this statement was false because at the suppression hearing DEA agents testified they had not conducted thorough searches of those rooms.

F. It was the duty of the trial judge to keep the prosecutor's argument within permissible limits, even though defense counsel did not object to the erroneous remarks.

Defense counsel contends that all of the above destroyed his credibility in the eyes of the jury, and so limited his argument on behalf of defendant that defendant was denied effective assistance of counsel. We have read the record and jury instructions and find no prejudicial error in the closing arguments.

With regard to defendant's allegations in above lettered paragraphs E and F, failure to raise a timely objection to the prosecutor's argument precludes its assertion as error on appeal in the absence of plain error. United States v. Lawson, 483 F.2d 535, 538 (8th Cir. 1973), cert. denied, 414 U.S. 1133, 94 S.Ct. 874, 38 L.Ed.2d 757 (1974); United States v. Librach, 536 F.2d 1228, 1231 (8th Cir.), cert. denied, 429 U.S. 939, 97 S.Ct. 354, 50 L.Ed.2d 308 (1976). It is true that DEA agents testified at the suppression hearing that they had not thoroughly searched the rooms occupied in Davis's house by his guests or tenants. However, the prosecutor's statements did not amount to plain error where the marijuana in Count III found during the search of Davis's residence was in Davis's office and a hall dresser adjacent to his bedroom and proof of his control and use of those areas was overwhelming. All of the evidence indicated that the marijuana belonged to Davis.

With regard to paragraphs A and C, the trial judge has broad discretion in controlling closing arguments. United States v. Lawson, supra at 539; United States v. Pruitt, 487 F.2d 1241, 1246 (8th Cir. 1973); Bryant v. United States, 462 F.2d 433, 436 (8th Cir. 1972); ...