United States of America, Appellee, v. Jerry Lee Cunningham, Appellant.
No. 97-1720MN
United States Court of Appeals FOR THE EIGHTH CIRCUIT
Submitted: October 21, 1997; Filed: January 13, 1998
On Appeal from the United States District Court for the District of Minnesota.
Before RICHARD S. ARNOLD, Chief Judge, LOKEN and HANSEN, Circuit Judges.
Jerry Lee Cunningham was convicted of drug and weapons charges after a jury trial. He appeals his conviction on four principal grounds: illegal search and seizure, violation of his right to counsel, failure of the District Court to conduct a hearing to examine whether improper jury contact occurred, and improper admission of his prior record in light of the Supreme Court‘s decision in Old Chief v. United States, ___ U.S. ___, 117 S.Ct. 644 (1997). We affirm the convictions. There was an Old Chief error, but we think it was harmless.
On August 6, 1996, police in Brooklyn Center, Minnesota, received a 911 call from an apartment in Brooklyn Center. The caller identified herself as Lachonda Williams and said she was being held against her will. When the police arrived at the apartment, they were met at the door by Jerry Lee Cunningham, the defendant, who attempted to prevent the police from entering the apartment. At trial, one of the officers testified that he could hear a woman crying inside the apartment. The police explained that it was necessary for them to enter the apartment to investigate the call. The defendant refused to permit the officers to enter the apartment, and he was arrested for obstructing legal process.
Once inside, the police observed a woman, later identified as Sheila Hatchett, sitting in a chair on top of another woman, later identified as Ms. Williams, who was holding a young child. Ms. Williams got out from underneath Ms. Hatchett, and the police took Ms. Williams into a rear bedroom to interview her. Ms. Williams told the police that Mr. Cunningham, who is her father, had assaulted her because he believed she had stolen $5,000 in cash from him. Ms. Williams also told the police that she had seen a large amount of crack cocaine in the apartment that day. She told the police that the defendant supplied drugs to Ms. Hatchett, that he had sold drugs at a bar in North Minneapolis, and that he carried weapons when he did so. While interviewing Ms. Williams in the bedroom, the police observed rolling papers and currency. Ms. Williams told the police that
Later, at the police station, Mr. Cunningham was informed of his Miranda rights
The police later searched the apartment pursuant to a warrant. This search led to the seizure of ammunition, several items of drug paraphernalia with crack and powder cocaine residue, and documents linking the defendant to the car and the apartment.
A jury convicted the defendant of possession of
II.
The Fourth Amendment protects citizens from unreasonable searches and seizures. Mr. Cunningham argues that this right was violated when the police entered all of the rooms of the apartment and observed the rolling papers and currency in the rear bedroom. This evidence led, at least in part, to the impoundment and search of the car, which in turn supported the warrant police obtained to search the apartment. Defendant argues that the evidence seized should be suppressed because its discovery was the result of a Fourth Amendment violation.
Although we review the facts supporting a District Court‘s denial of a motion to suppress for clear error, we review de novo the legal conclusions that are based upon those facts. See United States v. Ornelas, ___ U.S. ___, 116 S.Ct. 1657, 1663 (1996); United States v. Williams, 981 F.2d 1003, 1005 (8th Cir. 1992). When applying this standard, we give deference to the fact finder, who had an opportunity to observe the demeanor and credibility of the witnesses. United States v. Wallraff, 705 F.2d 980, 987 (8th Cir. 1983).
A warrantless search may be justified by exigent circumstances, which exist where the safety of law enforcement officers or others is threatened. Warden v. Hayden, 387 U.S. 294, 298-99 (1967). The defendant acknowledges that the police had a right to enter the apartment to investigate the 911 call but argues that there was no basis for entering every room of the apartment, since he had already been arrested,
Mr. Cunningham also argues that the search of the car and the apartment violated his Fourth Amendment rights. Both searches were conducted pursuant to warrants, and there was ample evidence to support the warrants. In addition to the testimony of the officers who sought the warrants, there was Ms. Williams‘s statement that she had seen a large amount of cocaine inside the apartment, and
III.
Mr. Cunningham next argues that testimony heard by the jury about statements he made to the detective while they were attempting to contact defendant‘s attorney violated his right to counsel. For the reasons that follow, this argument is also without merit.
The crux of the argument is that Robert Dirks, the detective who interviewed the defendant, prodded the defendant into incriminating himself after he had invoked his Miranda right to counsel. Mr. Dirks did this, according to the defendant, by dialing the telephone for the defendant, by remaining in the booking room with him while he spoke to several people in an effort to locate his attorney‘s telephone number, and by saying several things to the defendant between the calls. The defendant relies on Rhode Island v. Innis, 446 U.S. 291 (1980), which held that, in addition to express questioning, interrogation means “any words or actions on the part of the police (other than those normally attendant to arrest and custody) that the police should know are reasonably likely to elicit an incriminating response from the suspect.” Id. at 301 (footnotes omitted).
There is disagreement on the question of whether Mr. Cunningham made an unequivocal request to speak to an attorney. He argues, and the Magistrate Judge found, that he did. The government disputes this finding, arguing that, at most, what the defendant said to the detective was that he had requested an attorney earlier. We need not decide whether the defendant made an unequivocal
Mr. Dirks‘s second statement was made while the two were waiting for the attorney to call back. The defendant said his daughter had stolen money from him and that he was going to “do” her and make big headlines. He also repeated his earlier comment about being able to “do five to seven years standing on his head.” Mr. Dirks responded to this statement by saying that the defendant had obviously not been through the federal system, because five to seven years would not be consistent with the penalties for weapons and drug violations. The defendant responded, “Oh yeah, the guns in the car.” Mr. Dirks, who testified to all of the incriminating statements cited,
We do not believe it is reasonable to infer that Mr. Dirks made these two statements because he knew they would likely prod the defendant into incriminating himself. Further, we find nothing in the record to suggest that Detective Dirks should have known that his statements were reasonably likely to elicit an incriminating
IV.
Defendant‘s next argument is that the District Court abused its discretion by refusing to conduct a hearing into possible improper jury contact and by preventing the defense from conducting its own investigation into the alleged improper contact. Shortly after the jury began its deliberations, defendant‘s counsel was approached by a man in the hallway outside the courtroom who asked whether he was involved in the trial. Counsel said that he was one of the attorneys, and the man asked him whether the jury had reached a verdict. Counsel told the man that the jury had just begun deliberating, and the man said he was the husband of one of the jurors and was there to pick her up. The lawyer told the man he could not discuss the case further and reported the incident to the District Court. Counsel for the government informed the Court that the same man had earlier approached one of the police officers who testified, introduced himself as the husband of one of the jurors, and told the officer that he knew the officer‘s father.
The defendant asked the District Court to hold an immediate hearing to examine whether any contact with a juror had occurred. Under Remmer v. United States, 347 U.S. 227 (1954), a district court may hold a hearing to determine whether any private communication, contact, or tampering with a juror has occurred in a criminal case and, if so, whether such incident has prejudiced the defendant. Improper contact with a juror about a matter pending before the jury is presumptively prejudicial. Id. at 229. The District Court refused to hold a hearing, but instructed the jurors that they were not
Counsel for the defendant submitted an affidavit recounting the events involving the juror‘s husband and citing several grounds in support of his motion for a hearing or new trial. Defendant argued that a juror‘s spouse who is aggressive enough to approach and initiate a conversation with a government witness could have had undue and extraneous contact with his juror wife during the two to two-and-a-half-hour drive the couple made twice a day to and from the courthouse. He also argued that, since the juror‘s spouse claimed to have known the government witness‘s father, it was likely that the juror herself knew the same person, and this could have tainted the juror‘s perception of the officer‘s testimony to the prejudice of the defendant or, perhaps, meant that the juror had concealed this fact during voir dire. Finally, defendant argued that the presence of the juror‘s spouse in and around the courtroom may have imparted a sense of urgency to the juror to reach a decision quickly.
The District Court, finding the defendant had not established that there had been any improper contact with the jury, held that the defendant was not entitled to a hearing or a new trial. The Court wrote that the defendant‘s allegations were “mere speculation” and that no evidence had been produced that showed that “any improper contact [had] occurred with any juror.” United States v. Jerry Lee Cunningham, No. 3-96-105, Mem. and Order at 5 (D. Minn., Dec. 30, 1996). We review a district court‘s denial of a Remmer hearing and a motion
Mr. Cunningham also argues that the District Court abused its discretion when it permitted the government to introduce evidence of the nature of three prior felonies after he had offered to stipulate to his status as a felon for purposes of the felon-in-possession-of-a-firearm count. Citing then-current law, the Court denied the defendant‘s motion in limine that sought to require the government to accept the stipulation and to prevent it from introducing evidence of defendant‘s convictions for attempted murder, armed robbery, and burglary. At trial, the government offered certified copies of each conviction. After defendant was convicted, the Supreme Court decided Old Chief v. United States, ___ U.S. ___, 117 S.Ct. 644 (1997). Old Chief held that a district court abuses its discretion when it rejects a defendant‘s offer to stipulate his status as a felon under a
We recently held in United States v. Blake, 107 F.3d 651 (8th Cir. 1997), that reversal is required if it cannot be concluded that the jury may not have been substantially swayed by the improperly admitted evidence. Id. at 653. The government asserts that the evidence against Mr. Cunningham was overwhelming. We have read the entire transcript of the trial. The evidence was very strong. Crack and powder cocaine and three semiautomatic weapons with obliterated serial numbers were found
VI.
Oral argument in this case was heard on October 21, 1997. On December 18, 1997, Mr. Cunningham filed a motion requesting leave to file a supplemental brief. He asks us to direct his counsel to brief two new issues, neither of which has previously been raised, either below or in this Court, or to grant him leave to brief them pro se. He also moves us to hold this appeal in abeyance for the time it will take for the two new issues to be briefed by both sides. These motions are denied. This case has been fully briefed and argued. The time for filing briefs is long past. We have already allowed the filing of one set of supplemental briefs (raising the Old Chief issue). Our action is without prejudice to Mr. Cunningham‘s right to file a petition for post-conviction relief under
Affirmed.
A true copy.
Attest:
CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT