818 F.3d 323
7th Cir.2016Background
- On June 24, 2011 Chicago officers stopped Adolph Common; officers say a gun fell from his pants when he tripped and he confessed; Common denies possession, the confession, and alleges the officers planted the gun and failed to give Miranda warnings.
- Officers arrested Common after observing a clenched fist and a bulge; small bags of crack cocaine fell from Common’s hand and he ran; officers recovered a firearm and brought Common to the station.
- At the station officers testified they gave Miranda warnings twice and that Common said he had the gun for protection; police reports attributed the statement to Murphy with Hanrahan as witness.
- Common initially moved to suppress the confession (arguing no Miranda) but did not deny possession in that filing; at the suppression hearing he then denied both possession and the confession and asserted multiple witnesses to the arrest but did not call them at the hearing.
- Two mistrials occurred; at the third trial an evidence technician testified no fingerprints were recovered and that recovering prints from firearms is "extremely uncommon;" a jury convicted Common and the district court denied post-trial motions.
- On appeal Common challenged (1) denial of suppression, (2) admission of the fingerprint expert’s statistical testimony, and (3) denial of a new trial based on alleged prosecutorial misconduct; the Seventh Circuit affirmed.
Issues
| Issue | Plaintiff's Argument (Common) | Defendant's Argument (Government) | Held |
|---|---|---|---|
| 1) Whether confession should have been suppressed for lack of Miranda | Officers did not give Miranda; Common denied confession and possession; district court should have credited him | Officers gave Miranda twice; their testimony credible; confession voluntary and admissible | Affirmed denial of suppression; district court credibility findings not clearly erroneous |
| 2) Admissibility of fingerprint technician’s statistical testimony about rarity of recovering prints from guns | Statistical frequency is irrelevant and prejudicial to whether Common possessed the gun | Testimony is relevant to explain absence of prints and rebut implication that no prints proves planting; not unfairly prejudicial | Admission was within discretion; testimony relevant and not an abuse of discretion |
| 3) Prosecutorial misconduct — statements allegedly distorting burden of proof in closing | Prosecutor suggested acquittal requires finding officers lied, improperly shifting burden | Prosecutor conditionally argued that if jury believed officers framed Common they should acquit; did not say that was the only way to acquit | Statements distinguished from cases finding distortion; even if improper, harmless error in context |
| 4) Prosecutorial misconduct — misstating the evidence in rebuttal closings (e.g., number of witnesses who saw drugs, videos, questions asked) | Government misstated or misstated evidence in key particulars, depriving fair trial | Misstatements were minor or susceptible to interpretation as "no evidence" of certain items; jury instruction cures errors; harmless | Any misstatements were at most harmless error given jury instructions, context, and weight of evidence |
Key Cases Cited
- Jones v. United States, 614 F.3d 423 (7th Cir.) (standard of review for suppression factual findings)
- Huebner v. United States, 356 F.3d 807 (7th Cir.) (deference to credibility findings unless completely without foundation)
- Glover v. United States, 479 F.3d 511 (7th Cir.) (statistical fingerprint testimony can be probative to rebut inference from lack of prints)
- Paladino v. United States, 401 F.3d 471 (7th Cir.) (discussing limits of fingerprint-statistic relevance; dicta distinguishing contexts)
- Vargas v. United States, 583 F.2d 380 (7th Cir.) (prosecutorial remarks that distort burden of proof can warrant reversal)
- Cornett v. United States, 232 F.3d 570 (7th Cir.) (improper prosecutor statements about needing to find officers lied to acquit; harmless-error analysis)
- Sandoval v. United States, 347 F.3d 627 (7th Cir.) (factors for evaluating prejudice from prosecutorial misconduct)
- Darden v. Wainwright, 477 U.S. 168 (U.S.) (prosecutorial misconduct and due process standard)
- Addison v. United States, 803 F.3d 916 (7th Cir.) (strategic choices — failure to present witnesses at suppression hearing cannot later be cured on appeal)
- Almendarez-Torres v. United States, 523 U.S. 224 (U.S.) (prior convictions may be treated as sentencing factors)