United States v. Scott

• Decision Date: 05 August 2016
• Docket Number: No. 15-3461,15-3461
• Citation: 831 F.3d 1027
• Parties: United States of America, Plaintiff–Appellee v. Darrell A. Scott, Defendant–Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

831 F.3d 1027

United States of America, Plaintiff–Appellee

v.Darrell A. Scott, Defendant–Appellant.

No. 15-3461

United States Court of Appeals, Eighth Circuit.

Submitted: June 14, 2016

Filed: August 5, 2016

Rehearing and Rehearing En Banc Denied September 23, 2016

Counsel who presented argument on behalf of the appellant was JoAnn Trog, of Saint Louis, MO.

Counsel who presented argument on behalf of the appellee was Sayler Anne Ault Fleming, AUSA, of Saint Louis, MO.

Before SMITH and GRUENDER, Circuit Judges, and KETCHMARK,¹ District Judge.

SMITH

, Circuit Judge.

Darrell A. Scott was charged in a nine-count federal indictment.² He pleaded guilty to Counts VI–IX but proceeded to a bench trial on Counts I–V. The district court³ found him guilty of all counts, and, based on Counts I–IX, sentenced him to 768 months' imprisonment. Scott appeals, arguing that (1) there is not sufficient evidence to sustain the verdict of the bench trial, (2) his sentence violates the Eighth Amendment, and (3) the district court imposed a substantively unreasonable sentence. We affirm.

I. Background

We recite the evidence in the light most favorable to the verdict. See United States v. Stevens , 439 F.3d 983, 986 (8th Cir. 2006)

. On August 27, 2011, an individual approached Garrett Davis's red Chevrolet Lumina. The individual pointed a handgun at Davis and threatened to kill Davis if he did not get out of the car. Once Davis had exited, the individual ordered Davis to turn over his earring, money, and cell phone. At the same time, the individual intensified his demands by cycling the action on the handgun, causing the chambered round to eject, and again pointed the gun again at Davis. Davis described the gun as a black, .40 caliber automatic pistol with an extended magazine.⁴ The individual then directed an accomplice who had been hiding behind a dumpster to get into Davis's car and drive off. The individual followed the car, keeping the gun pointed at Davis as he left.

Davis called the police. Officer Ishmael Tyson of the St. Louis Metropolitan Police Department (SLPD) responded to Davis's call. Davis provided Officer Tyson with a “pretty good description” of the two carjackers. At trial, Davis identified Carris King as the individual with the handgun. Davis described King's accomplice as an African-American male who was a “little taller,” “heavier,” and “darker” complected than King. He also described the accomplice as having a mustache, goatee, and a little beard and wearing a dark-colored shirt. At the scene, Officer Tyson recovered a live Winchester .40 caliber cartridge that had been ejected when King “racked” the gun.

Less than an hour after the Davis carjacking, William and Johnetta Smith were getting into their Dodge Caravan when two individuals in a red Lumina pulled up beside their van. Mrs. Smith was in the driver's seat, and Mr. Smith was in the front passenger seat. The passenger of the Lumina, who Mr. Smith later identified as King, asked Mrs. Smith for directions to I-70. King and the driver then exited the Lumina. The driver approached Mrs. Smith, and King approached Mr. Smith. The driver pointed a gun at Mrs. Smith and ordered her to get out of the van. At the same time, King told Mr. Smith to get out and turn over any money. The driver then got into the van and drove away. King followed in the Lumina.

At trial, Mr. Smith testified that he could see the driver “very clearly” and described the driver as taller, heavier, and darker complected than King. Mr. Smith also described the driver as having a beard and wearing a dark-colored shirt. Although the driver was on the other side of the van and closer to his wife, Mr. Smith stated that he was focused on his wife throughout the ordeal. The driver had a gun pointed at her head and Mr. Smith “was afraid for her health” and “didn't want her to get hurt.” He described the gun that the driver had as a black Glock.

Not long after the Smith carjacking, Detective Thomas Mayer, an SLPD officer, encountered the Lumina and began to pursue it. King eventually lost control of the Lumina and crashed. Detective Mayer stated that he got a “good look” at the two occupants of the Lumina. At trial, he identified King as the driver of the Lumina. Detective Mayer exited his squad car, commanding King and his accomplice to show him their hands and exit the vehicle. Both King and his accomplice, who were armed, disobeyed Detective Mayer and tried to flee on foot. Detective Mayer fired two shots, causing the accomplice to drop his weapon inside the Lumina as he fled.

King kept his weapon, but Detective Mayer saw it and described it as a “dark-colored semi-automatic pistol.” Detective Mayer was unable to apprehend King or his accomplice.

Law enforcement searched the Lumina and recovered a dark-colored Glock Model 27, .40 caliber Smith and Wesson semi-automatic pistol on the front passenger seat. It had one round in the chamber and seven rounds in an extended magazine. Officer Mayer identified the Glock as the same firearm that he saw the accomplice drop into the front passenger seat of the Lumina before fleeing. At trial, Mr. Smith testified that the Glock “look[ed] exactly like” the handgun that the driver had pointed at Mrs. Smith. Davis also identified the Glock as the same firearm that King had pointed at him. The search of the Lumina also turned up a key to the Smiths' home and van as well as a container of change and cassette tapes that had been in the Smiths' van. An evidence technician officer lifted latent fingerprints from the passenger door of the Lumina and from the cassette tapes. Law enforcement found the Smiths' van abandoned about a mile from their residence.

Law enforcement apprehended King later that day after receiving information of his involvement in the carjackings. Scott was not arrested for another two years. Detective Mayer explained that when presented with interview opportunities, he would ask individuals about unsolved crimes, including the Davis and Smith carjackings. Detective Mayer testified that in August 2013, an interviewee with knowledge of the carjackings gave him Scott's name. This individual told Detective Mayer that Scott participated in the Davis and Smith carjackings.

Detective Mayer entered Scott's name into a computer database, pulled up a photograph of him, and recognized him as the passenger in the Lumina that he had pursued. He then entered Scott's physical characteristics into the Regional Justice Information System (REJIS). The REJIS assembled a panel of five individuals with similar physical characteristics to Scott and prepared a photographic lineup of those five individuals and Scott. The REJIS randomly positioned Scott's photograph in the lineup. Detective Mayer met with the Smiths to present the photographic lineup. He separated the Smiths, presenting the lineup to them individually. Detective Mayer explained to both of the Smiths that “the individual responsible for your crime may or may not be in these photographs, and you are under no obligation to make a selection just from these six.” Mrs. Smith did not hesitate in identifying Scott. Detective Mayer testified that when Mrs. Smith saw Scott's photograph, she “became extremely distraught like it brought back all the memories.” Detective Mayer presented the lineup to Mr. Smith in a separate room, and he identified Scott with certainty.

Law enforcement arrested Scott on August 16, 2013. Detective Mayer informed him that his arrest was related to the Davis and Smith carjackings. Scott responded, “I knew this shit was going to catch up to me” and “I thought you all forgot about it already.” Law enforcement also matched Scott's fingerprints with the fingerprints lifted from the Lumina. Scott waived his Miranda rights and agreed to talk. He admitted to being with King joyriding in a red Lumina the morning of August 27, 2011, but he disclaimed any responsibility for the carjackings. At the time, Scott was released pending trial on Counts VI–IX, then part of a separate indictment. Detective Mayer was aware of these pending charges, but he did not ask him any questions about them.

Later, a federal grand jury returned a nine-count superseding indictment against Scott. Scott's pending charges were combined with the charges relating to the carjackings. Scott pleaded guilty to Counts VI–IX, but he proceeded to trial on Counts I–V. Scott consented to a bench trial on those charges. Before trial, Scott filed motions to suppress the identification evidence from the photographic lineup and any statements that he made after his arrest on August 16, 2013. The district court denied Scott's motions and, after a trial on Counts I–V, found Scott guilty on all counts. At sentencing, the district court calculated Scott's offense level as 23 and criminal history category as V, yielding a Guidelines range of 84 to 105 months. The court sentenced Scott to 84 months' imprisonment on Counts I, III, V, VI, VII, and VIII, to be served concurrently. Additionally, 18 U.S.C. § 924(c)

required the court to impose consecutive sentences of 7 years, 25 years, and 25 years on Counts II, IV, and IX, respectively. Accordingly, the district court sentenced Scott to 768 months' imprisonment.

II. Discussion

Scott argues that (1) there is not sufficient evidence to sustain the district court's verdict, (2) his sentence violates the Eighth Amendment, and (3) the district court imposed a substantively unreasonable sentence.

A. Sufficiency of the Evidence

Scott contends that the district court erroneously admitted evidence that prejudiced his defense. He first argues that the photographic lineup was unreliable, and, therefore, the district court should have suppressed the Smiths' identification of him. He next argues that the district court should have suppressed the audio recordings of the statements that he made to law enforcement because he was already under indictment, he had counsel, and law enforcement did not notify his counsel prior to...