UNITED STATES OF AMERICA, Plaintiff-Appellee, v. JERRY CHARLES NELSON, JR., Defendant-Appellant.
No. 12-5477
UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT
August 7, 2013
13a0210p.06
RECOMMENDED FOR FULL-TEXT PUBLICATION Pursuant to Sixth Circuit I.O.P. 32.1(b). Appeal from the United States District Court for the Middle District of Tennessee at Nashville. No. 3:10-cr-00053—Todd J. Campbell, Chief District Judge. Argued: June 20, 2013.
Before: ROGERS and KETHLEDGE, Circuit Judges; BORMAN, District Judge.*
COUNSEL
OPINION
ROGERS, Circuit Judge. Jerry Nelson appeals from his conviction for being a felon in possession of a firearm and ammunition, in violation of
In the early morning hours of June 15, 2009, Officers Joshua Meredith and Tommy Massey of the Murfreesboro, Tennessee police department were dispatched in response to an anonymous 911 call reporting that a black man wearing a blue shirt, with a “poofy” afro, riding a bicycle, was armеd with a pistol. Officer Meredith arrived at the scene first and began to make conversation with a man, Jerry Nelson, who precisely matched this description. Officer Massey then arrived to find Officer Meredith speaking with Nelson from his patrol car. As Officer Meredith started to get out of his car to speak to Nelson further, Nelson began to ride away on his bicycle. Officer Meredith shouted at Nelson to stop, but Nelson kept riding away. Officer Massey, still in his squad car and following Nelson at a distance of between ten and twenty-five feet, observed Nelson reach into his waistband and throw a large, heavy object, which Officer Massey believed to be a gun, into nearby bushes. Officer Massey continued following Nelson across the street to a parking lot, where Nelson tried to abandon his bicycle and continue his flight on foot. By this point,
After Nelson was placed under arrest, officers searched him and recovered bullets from his pocket. Officer Massey sent two officers to search the area where he observed Nelson throw the heavy object into the bushes. The officers found a loaded gun at that location. Nelson was eventually charged with being a convicted felon in possession of a firearm and ammunition, in violation of
Although reversal is required on the hearsay-evidence issue, as explained below, we first conclude that sufficient evidence supported the jury’s verdict. Sufficiency of the evidence must be independently considered because a reversal on that ground would preclude retrial. See Patterson v. Haskins, 470 F.3d 645, 651–53 (6th Cir. 2006); see also Burks v. United States, 437 U.S. 1, 18 (1978).
The verdict was supported by sufficient evidence, and Nelson’s argumеnt to the contrary is meritless. This court reviews challenges to the sufficiency of the evidence by determining “whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319 (1979). Conviction under
Reversal is nonetheless required because the police officers’ testimony regarding the anonymous 911 caller’s description of the suspect was hearsay evidence admitted to prove that Nelson possessed a gun. The five officers’ detailed testimony, which was based on an anonymous, out-of-court declarant’s observations, went directly to the key issue for jury resolution, was not necessary for the Government to provide the jury with a coherent narrative explaining the officers’ actions, and was too prejudicial for the harm to be cured with a limiting instruction. Furthermore, the error was not harmless because it is more probable than not that it had a material impact on the jury’s verdict.
The hearsay evidenсe should not have been admitted. Officers Massey and Meredith
It is necessary here to examine the purpose for which ostensibly non-hearsay evidence was introduced in order to determine whether it is hearsаy in the first place. See, e.g., United States v. Sallins, 993 F.2d 344 (3d Cir. 1993). Contrary to the Government’s position, the police officers’ testimony about the 911 call, in the context of this case, was effectively offered to prove the truth of the statements made, rather than to show background. This renders the statements hearsay under Federal Rule of Evidence 801(c)(2), and thereby inadmissible under Rule 802. It is true that background information thаt explains how law enforcement came to be involved might not be hearsay because it is offered not for the truth of the matter asserted, but rather to show why the officers acted as they did. See, e.g., United States v. Caver, 470 F.3d 220, 239 (6th Cir. 2006); United States v. Aguwa, 123 F.3d 418, 421 (6th Cir. 1997). In this case, however, the anonymous 911 caller’s description was neither relevant nor material because the officers’ background or state of mind were never at issue аt Nelson’s trial.
Moreover, to the extent the jury needed to hear about what prompted the police action, a less-detailed statement indicating that the police received a 911 call, without detailing the caller’s description, would have avoided the prejudice problem while still ensuring that the jury was given the minimal background information needed to understand why the officers behaved as they did. For example, the officers could have testified that they were responding to an anonymous complaint of illegal activity in the area, or that they were responding to a report of a suspicious individual believed to be dangerous. In United States v. Hearn, 500 F.3d 479, 483 (6th Cir. 2007), we indicated that a statement “[t]hat the officers had [received] reports from [an оut-of-court declarant] of ‘some illegal activity,’ for example, would have sufficed” to show why the authorities initiated their investigation of the defendant. Although Hearn dealt with a Confrontation Clause violation rather than a hearsay-rule violation, this court’s concern with allowing evidence about an out-of-court declarant’s statements directly to inculpate the defendant is relevant here.
The Government suggests that, without hearing detailed testimony about the suspect’s appearance, the jury would have been confused about why the officers were questioning Nelson or, even worse, would have viewed the officers’ use of force in drawing their weapons on Nelson as excessive. Its concern is overstated. The Government сontended that the jury needed to hear that the suspect was armed to understand why the police responded as they did. See R. 98 at 14. But the jury heard testimony that Officers Massey and Meredith arrived at the scene in response to the 911 call, encountered Nelson, and were speaking with him before he began fleeing. The officers used force against Nelson only to prevent him from escaping, and Nelson was initially arrested for resisting a stop and frisk rather than for gun possession. Even without being given the details of the 911 caller’s description, a rational juror would not conclude that the officers were arbitrarily harassing Nelson or using excessive force against him.
This is not a case where evidence of an out-of-court declarant’s statеments was necessary to provide the jury with a coherent
The hearsay nature of the 911-call evidence in this case is supported by similar cases in other circuits. In United States v. Sallins, 993 F.2d 344, 345–46 (3d Cir. 1993), the Third Circuit rejected a background-information argument, and held inadmissible as hearsay police testimony regarding a radio dispatch based on a 911 call, and the contents of the call, to the effect that there was a black male in black clothing carrying a gun at a certain location. The court reasoned in part that the government could have simply elicited testimony that the officers “were responding to a radio call оr information received,” and that “no background beyond what the officers testified they observed was necessary to help the jury understand why [the officers] pursued and arrested Sallins.” Id. at 346. As shown above, these considerations apply as well in this case. See also United States v. Reyes, 18 F.3d 65, 69-72 (2d Cir. 1994).
The admission of the hearsay evidence here was not harmless because it is more probable than not that the error materially affected the verdict. See Caver, 470 F.3d at 239 (stating standard). The testimony by five separate officers1 about the 911 caller’s statements repeatedly invited the jury to conclude that a man fitting Nelson’s exact description was seen armed with a handgun. The Government’s other evidence was circumstantial, and no officer testified to having seen Nelson possess a gun. Moreover, at least one officer testified that he reliеd on the hearsay evidence to conclude that Nelson possessed a gun, belying the Government’s contention that the evidence about the 911 caller’s statement was being offered merely as background information. In Hearn, we concluded that because the out-of-court declarant’s statements “went to the heart of the government’s case” against the defendаnt, the error—there, a Confrontation Clause violation—was not harmless. Hearn, 500 F.3d at 485. The same reasoning governs here because the Government’s case was likewise circumstantial and the hearsay evidence went to the heart of the Government’s case. In light of these facts, the error in admitting the hearsay evidence was not harmless.
The hearsay evidence was also prejudicial because the officers’ testimony went to the very heart of the sole disputed issue for the jury’s resolution, namely whether Nelson possessed a gun. Because five separate officers each testified as to what the dispatcher told them, the fact that
The curative instructions, moreover, were not sufficient to eliminаte the prejudice on the facts of this case. Although the district court gave the jury a limiting instruction after each officer’s testimony—reminding them that the evidence about the suspect’s description was not to be considered for its truth—the prejudicial nature of the evidence and the fact that it went to the key issue for the jury’s resolution made it unlikely that the limiting instruction adequately protected Nelson from prejudice. A limiting instruction is not always sufficient to cure the harm of highly prejudicial information improperly admitted at trial. See United States v. Martin, 897 F.2d 1368, 1372 (6th Cir. 1990); see also Bruton v. United States, 391 U.S. 123, 132 (1968).
Although the hearsay issue alone requires reversal, we address Nelson’s other claims to provide guidance to the district court on remand. The district court properly denied Nelson’s motion to suppress the gun and ammunition, and properly rejected Nelson’s proposed jury instruction on police negligence.
Because the gun was abandoned property and Nelson had no legitimate expectation of privacy in it or the place in which it was found, the government’s warrantless search and seizure of that evidence did not violate the Fourth Amendment. The warrantless searсh and seizure of abandoned property does not violate the Fourth Amendment, and whether property has been abandoned “turns upon whether a person can claim a continuing, legitimate expectation of privacy in the item at issue.” United States v. Robinson, 390 F.3d 853, 873 (6th Cir. 2004); see Rakas v. Illinois, 439 U.S. 128, 143 (1978); Abel v. United States, 362 U.S. 217, 241 (1960). A legitimate expectation of privacy exists when a person “has exhibited an actual (subjective) expectation of privacy” and “the individual’s subjective expectation of privacy is one that society is prepared to recognize as reasonable.” Smith v. Maryland, 442 U.S. 735, 740 (1979) (internal quotation marks omitted). Nelson had no legitimate expectation of privacy in the property at issue here. Viewing the evidence, as we must, in the light most favorable to the Government, see United States v. Couch, 367 F.3d 557, 560 (6th Cir. 2004), the district cоurt properly admitted the gun into evidence.
The ammunition was also properly admitted in evidence because the warrantless search leading to that evidence was a valid search incident to arrest. The district court properly concluded that at the point when Officer Massey observed Nelson throw what Massey thought was a gun into the bushes, he had probable cause to arrest Nelson. Although Nelson was initially arrested for a state-law offense—resisting a stop and frisk—different from the felony-gun-possession offense he was subsequently charged with, the officers had probable cause to arrest him at the time. An arresting officer’s “subjective reason for making the arrest need not be the criminal offense as to which the known facts рrovide probable cause.” Devenpeck v. Alford, 543 U.S. 146, 153 (2004). The police had probable cause to arrest and search Nelson based on the circumstances. Viewing the evidence in the light most favorable to the Government, the district court properly admitted the ammunition into evidence.
We do not address Nelson’s challenge to the substantive reasonableness of his sentence because the case will be remanded for a new trial.
The district court’s judgment as to both the firearm possession and the ammunition possession counts is vacated, and the case is remanded for proceedings consistent with this opinion.