United States v. Turner

• Decision Date: 07 March 2012
• Docket Number: No. 10–60917.,10–60917.
• Citation: 674 F.3d 420
• Parties: UNITED STATES of America, Plaintiff–Appellee, v. Antonio TURNER, Defendant–Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

674 F.3d 420

UNITED STATES of America, Plaintiff–Appellee,
v.
Antonio TURNER, Defendant–Appellant.

No. 10–60917.

United States Court of Appeals, Fifth Circuit.

March 7, 2012.

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Gregory Layne Kennedy (argued), Erin O'Leary Chalk, Asst. U.S. Attys., Jackson, MS, for Plaintiff–Appellee.

Clarence T. Guthrie, III (argued), Guthrie Firm, P.L.L.C., Ridgeland, MS, Samuel Dennis Joiner, Fed. Pub. Def., Kathryn Neal Nester, Asst. Fed. Pub. Def., Jackson, MS, for Defendant–Appellant.

Appeal from the United States District Court for the Southern District of Mississippi.

Before CLEMENT, OWEN and HIGGINSON, Circuit Judges.

OWEN, Circuit Judge:

Antonio Turner was convicted of robbery in interference with interstate commerce, carjacking, the use of a firearm in relation to each of those offenses, and being a felon in possession of a firearm. Turner asserts eleven claims of error. We affirm the judgment of the district court.

I

Two masked men armed with handguns robbed Title & Payday Loans (Title Loans) in Jackson, Mississippi. No shots were fired during the two-minute robbery, which was captured on the business's security camera. According to a videotaped confession by Antonio Turner, he was one of the robbers and Cornelius Black was the other. Turner has asserted, both below and on appeal, that his confession was unlawfully coerced through violence, threats, and promises.

The same day of and shortly after the Title Loans robbery, a Popeyes restaurant in Jackson was also robbed. As the perpetrators fled the scene, Officer Dewayne Collier of the Jackson Police Department gave chase until the getaway car crashed, at which point one of the robbers (Turner, according to his confession) began firing at Officer Collier, who was in his patrol car, wounding him in the neck. The shooter then stole the patrol car and fled. The patrol vehicle was found abandoned on Norman Street, where a police officer saw an unidentified person running into the

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woods. Turner was arrested near the same woods later that day. Cornelius Black was arrested near the scene of the shooting.

Turner was tried on charges of robbery in interference with interstate commerce (the Title Loans robbery) (in violation of 18 U.S.C. § 1951), use of a firearm in relation to a crime of violence (robbery) (in violation of 18 U.S.C. § 924(c)(1) and (2)), carjacking resulting in injury (in violation of 18 U.S.C. § 2119), use of a firearm in relation to a crime of violence (carjacking) (in violation of 18 U.S.C. § 924(c)(1)), and being a felon in possession of a firearm (in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2)). The jury convicted him of robbery, use of a firearm in relation to robbery, and being a felon in possession, but the jury was unable to reach a verdict on the charges of carjacking and use of a firearm during a carjacking. In a subsequent retrial, Turner was convicted of the latter two offenses.

In this appeal, Turner challenges his convictions on all five counts as well as his sentence. Because Turner was not sentenced for any of his convictions until after his second trial, all of his claims of error relating to both trials are properly before this court at this time.¹

II

Turner first asserts that the district court erred by denying his motion for a new trial on the robbery counts and the felon-in-possession count in light of evidence that had been lost at the Jackson Police Department and not found until after the first trial. Once he became aware of the new evidence, Turner moved for a new trial on two alternative grounds: as a result of newly discovered evidence under Federal Rule of Criminal Procedure 33 and based on a violation of the Brady rule.²

Turner's defense during both trials was that he was one of three men involved in the crimes but that he did not personally rob Title Loans or shoot Officer Collier. He asserts that evidence discovered after his first trial supports this defense. The primary new evidence at issue was contained in two brown paper grocery bags discovered behind a cubicle at the Jackson Police Department. One of the bags held a pair of blue denim jeans, a white tank top style T-shirt, a pair of white Reebok athletic shoes, a black knit style “do-rag,” and a cellular telephone. Because the contents were similar to what Turner had been wearing when he was arrested, this bag was labeled “Antonio Turner” by the officer who found it. The other bag contained two pairs of black tennis shoes, a cellular telephone, white footies, and $316 in cash. Because it was found alongside what was thought to be Turner's clothing, this bag was labeled “Cornelius Black” by the officer.

All these items were tested for blood and DNA. None was found on one of the phones, however, blood or DNA was found on several items. Blood on the white tank top matched Turner's DNA, but blood on the jeans was from an unknown woman. DNA recovered from the white Reebok athletic shoes and one of the cellular phones did not match Turner's, Black's, or Collier's DNA. DNA from the black tennis shoes came from two individuals, one of whom was Collier, but the identity of the other person was unknown. In sum, the

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evidence indicated that DNA on some of the items came from two different individuals, one of whom was female, and the other of whom was not Turner, Black, or Collier.

In his Rule 33 motion, Turner also cites as new evidence a police interview conducted after the first trial with Jim Vlach, who told police that, around the time and place of the robbery, he “saw two vehicles speed past his business” with police cars in pursuit. Turner also points to a fingerprint and palm-print analysis, performed after the first trial, of Officer Collier's patrol car. This analysis found Officer Collier's prints on the vehicle, but it did not find prints from Turner.

Turner asserts that the existence of the third pair of shoes found in one of the paper bags discovered after the first trial supports his version of events. He also points to the bloody tank top as evidence that he was beaten by the police to coerce a confession.

A

In Brady v. Maryland, the Supreme Court held that “the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution.”³ Turner contends that the evidence discovered after his first trial entitles him to a new trial on the counts for which he was convicted in the first trial. We review the denial of a motion for a new trial for abuse of discretion but consider alleged Brady violations de novo.⁴ This de novo review “must proceed with deference to the factual findings underlying the district court's decision.”⁵

“[F]avorable evidence is material, and constitutional error results from its suppression by the government, if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different.”⁶ “Reasonable probability” means “a probability sufficient to undermine confidence in the outcome.” ⁷

The evidence here does not meet this standard. It is unlikely Turner's confession would have been deemed coerced based on the finding of his blood on the tank top when he had been involved in at least one car accident on the same day and when the determination of a lack of coercion involved numerous other factors. The jury heard a great deal of evidence implicating Turner, including his confession. The third pair of shoes, with no chain of custody and no certain tie to the case, and the bloody tank top, both found in a bag in a police station, might have slightly bolstered Turner's arguments had he had access to them. But this possibility is insufficient to undermine our confidence in the outcome of his first trial when these items were unavailable.

B

Turner contends that he is entitled to a new trial under

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Federal Rule of Criminal Procedure 33, which permits a court to “vacate any judgment and grant a new trial if the interest of justice so requires.” We review a district court's decision regarding a Rule 33 motion for an abuse of discretion.⁸ “Such motions are disfavored and reviewed with great caution.”⁹ When the basis of the motion is newly discovered evidence, we apply the “ Berry rule,”¹⁰ under which the defendant must show

(1) that the evidence is newly discovered and was unknown to him at the time of trial; (2) that the failure to discover the evidence was not due to his lack of diligence; (3) that the evidence is not merely cumulative, but is material; and (4) that the evidence would probably produce an acquittal. ¹¹

Here, the first two elements are not in dispute, as the items in the grocery bags were genuinely lost and could not have been discovered by Turner until they were found behind the cubicle. The interview with Vlach and the print analyses were not conducted until after the first trial. At issue is whether this evidence is material, not merely cumulative, and whether it would probably lead to an acquittal.

For the same reasons that we concluded that the blood on the tank top and the third pair of shoes did not require a new trial under Brady, we also conclude that this evidence would not “probably produce an acquittal.” The interview with Vlach was cumulative of Turner's other evidence of a third robber and would add little persuasive force to a theory the jury had considered and rejected.

The palm and fingerprint analysis that failed to find Turner's prints on Collier's patrol car is not an appropriate issue for this new-trial motion as the analysis was performed before the trial that actually convicted Turner on the carjacking and related use of a firearm counts. Turner argues that, since the court considered all of the counts “inextricably intertwined,” we should consider evidence on one count relevant to all counts. But the first jury did not convict on...