UNITED STATES оf America, Plaintiff-Appellee, v. Roosevelt SIMMONS, Defendant-Appellant.
No. 08-5116.
United States Court of Appeals, Fourth Circuit.
Submitted: April 21, 2010. Decided: May 27, 2010.
378 Fed. Appx. 323
Accordingly, we affirm the judgment of the district court. We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process.
AFFIRMED.
Travis R. Fitzwater, Law Office of Travis R. Fitzwater, Morgantown, West Virginia, for Appellant.
Before WILKINSON, GREGORY, and DAVIS, Circuit Judges.
Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Roosevelt Simmons appeals his conviction and sentence on one count of being a fеlon in possession of ammunition, in violation of
I.
Early on the morning on November 4, 2007, Roosevelt Simmons called 911 after returning home from work to report that his apartment at the Eagle Court Apartments in Wheeling, West Virginia, had been burglarized. Simmons told the responding officers that he believed his neighbors had committed the crime as retaliation for Simmons‘s reporting them to
Gooch did not open the apartment door, but a person in apartment 323, Jaime Conley,1 did. Simmons bеgan yelling at Conley about his apartment break-in, “getting in her face,” and telling her that whoever had robbed him had “f* * *ed with the wrong n* * * * *r.” Conley noticed another man, who she did not recognize, standing in the hallway. Conley told Simmons that she knew nothing about the burglary and, frightened, slammed the door in his face. Conley did not know Simmons‘s name, but she recognized him as the man that had come over several nights earlier to complain about loud music in the apartment.
Gooch began watching the events unfold through the peephole in Ruthers‘s apartment. Gooch heard Simmons verbally abusing Conley and also saw a man he did not recognize standing further down the hallway. After Conley slammed the door, Gooch saw Simmons pull a handgun from a brown paper bag he was holding. Gooch told Ruthers to call 911 and retreated back into the apartment. Moments later the residents heard gunfire and the sound of breaking dishware and glass. Gooch heard four shots in quiсk succession followed by a fifth shot seconds later. One of the occupants of apartment 323 called 911, as did Ruthers. Ruthers, who had been seated in her living room looking out over the parking lot, saw the unidentified man exit the building into the parking lot prior to the shots being fired. Gooch and Ruthers then watched together as Simmons and the unidentified male entered the car and left the parking lot at a high rate of speed with Simmons driving. Sealey testified that he was the man stаnding down the hallway and that, when he saw Simmons pull a gun, he tried to dissuade him from using it. Unable to do so, Sealey fled the apartment building and heard multiple gunshots as he reached the parking lot.
Officers from the Wheeling Police Department responded to the scene. Gooch and Ruthers both identified “Rosie” Simmons as the shooter and provided a description of him and his car. Conley also provided a description of the suspect and told officers that hе lived in the building.
After leaving Eagle Court, Simmons and Sealey returned to Speights‘s home, where Sealey witnessed Simmons hide the gun in a laundry detergent box on top of the refrigerator. Twenty minutes later Officer Ben Heslep with the Bellaire, Ohio,
At the Eagle Court Apartments, officers recovered five spent 9 mm. caliber shell casings in the hallway. Four were clustered together outside of doors 322 and 323 and the fifth was fifteen feet down the hall. Three bullet holes were found in the door to apartment 322 and two holes were found in the door to apartment 323. One of the bullets shattered the dishware in Ruthers‘s apartment. Officers never recovered the firearm used in the shooting.
Based upon the foregoing, a federal grand jury indicted Simmons on December 4, 2007, on one count of being a felon in possession of ammunition, in violation of
Prior to trial, Simmons moved to exclude the results of the GSR test as well as both out-of-court and in-court identification testimony from Gooch. The district court, adopting the recommendation of the magistrate judge assigned to the case, denied both motions. A jury trial was conducted from August 26 to August 28, 2008. During the trial, the district court conducted a jury view of the crime scene outside the presence of Simmons, who was detained in a van in the parking lоt. The jury ultimately convicted Simmons on the ammunition possession charge. The district court conducted a sentencing hearing on November 3, 2008, and sentenced Simmons to 120 months imprisonment. Simmons noted a timely appeal.
II.
On appeal, Simmons contends that the district court committed reversible error in conducting a jury view of the Eagle Court Apartments, permitting Gooch‘s identification testimony, denying the motion to suppress the GSR test, and admitting evidence of the shоoting.3 We address each contention in turn.
A.
Simmons first contends that the district court committed reversible error in conducting a jury view of the Eagle Court Apartments during the trial. “The federal courts recognize their inherent power to permit a jury view of places or objects outside the courtroom. The decision to permit a view is entrusted to the sound discretion of the trial court.” United States v. Passos-Paternina, 918 F.2d 979, 986 (1st Cir.1990) (citations omitted). See also United States v. Woolfolk, 197 F.3d 900, 905 (7th Cir.1999) (noting that a district court‘s ruling on a motion for a jury view is reviewed for abuse of discretion).
Three months prior to trial, the Government moved for a jury view of the Eagle Court Apartments and included a proposed list of sites. The district court granted the motion as to the sites described by the Government and also offered Simmons the opportunity to suggest additional sites.
On the first day of the trial, the district court, accompanied by counsel, the Defendant, and the lead investigator, Agent James E. Sirbaugh of the ATF, took the jury to view the Eagle Court Apartments. The Defendant stayed in a van with U.S. Marshаls during the view. Before entering the apartments, Agent Sirbaugh suggested to the district court, outside the presence of the jury, that the jurors look at the bullet holes in the apartment doors from both sides, a request the district court granted. Once inside the apartment, and again outside the jury‘s presence, Agent Sirbaugh suggested that the jurors see the holes in Ruthers‘s refrigerator. Simmons‘s counsel objected to that view because it was not on the Government‘s pretrial list of sites, and the district court sustained the objection. The jurors completed the view and returned to court.
On appeal, Simmons does not contest the conducting of a jury view, but rather argues that, given Special Agent Sirbaugh‘s comments, the jury view was transformed from a permissible crime scene inspection into an unconstitutional opportunity for Agent Sirbaugh to testify outside of the Defendant‘s presence. Simmons also argues that he was unable to communicate with counsel during the jury view, and that this failure kept Simmons from having his counsel point out several important features of the scene.
We do not believe either situation constituted reversible error in this case. The presence of Simmons‘s counsel during the view resolves any constitutional issues arising from Simmons‘s inability to take part in the view. See Snyder v. Massachusetts, 291 U.S. 97, 54 S.Ct. 330, 78 L.Ed. 674 (1934), (holding that a jury view with counsel present is constitutional). In addition, Agent Sirbaugh‘s comments were not made in front of the jury, and, even if they were, he was simply assisting the district court in finding the sites already supplied by the Government.
Moreover, even assuming the district court erred in conducting the view, Simmons cannot show that such error was harmful. This court has held that jury views of crime scenes, both court-ordered and unsupervised, are subject to harmless error review. See Arnold v. Evatt, 113 F.3d 1352, 1361 (4th Cir.1997) (court-ordered jury view subject to harmless error review); Sherman v. Smith, 89 F.3d 1134, 1137 (4th Cir.1996) (en banc) (unsupervised jury view of crime scene subject to harmless error review). In determining the possible harm of any error, this court shоuld “look to the nature and extent of
Applying this standard, any error in this case was harmless. Two witnesses who knew Simmons, Gooch and Ruthers, testified that he was the person in the hallway, and Gooch and Conley both testified that Simmons drew a gun. Simmons‘s own companion that day, Cameron Sealey, testified that Simmons drew a gun and that, in response, Sealey fled the apartment building and subsequently heard gunshots. Conley and Gooch both testified that they heard gunfire аlmost immediately after Simmons drew the gun. During pretrial incarceration, Simmons told his girlfriend Speights that he had hidden the gun and that his sister was disposing of it. Sealey further testified that he watched Simmons hide the gun in Speight‘s home. Given this wealth of testimony, it is difficult to see how Agent Sirbaugh‘s suggestion or Simmons‘s exclusion were prejudicial. Simmons suggests that he would have asked for different site views regarding the ability to see the parking lot from the apartments, but he had the opportunity to do so during the pretrial period and also had ample opportunity to cross-examine Ruthers and Gooch on that point.
B.
Next, Simmons argues that the district court erred in permitting Gooch‘s identification testimony at trial. “Due process principles prohibit the admission at trial of an out-of-court identification obtained through procedures ‘so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification.‘” United States v. Saunders, 501 F.3d 384, 389 (4th Cir.2007) (quoting Simmons v. United States, 390 U.S. 377, 384, 88 S.Ct. 967, 19 L.Ed.2d 1247 (1968)). No due process viоlation occurs if the “identification was sufficiently reliable to preclude the substantial likelihood of misidentification.” United States v. Johnson, 114 F.3d 435, 442 (4th Cir.1997); see also Manson v. Brathwaite, 432 U.S. 98, 106, 97 S.Ct. 2243, 53 L.Ed.2d 140 (1977) (stating that the central question is “whether under the totality of the circumstances the identification was reliable even though the [identification] procedure was suggestive“) (internal quotations omitted).
We consider the admissibility of identification testimony in two steps:
First, the defendant must show that the photo identification procedure was impеrmissibly suggestive. Second, if the defendant meets this burden, a court considers whether the identification was nevertheless reliable in the context of all of the circumstances.
If a witness‘s out-of-court photo identification is unreliable and therefore inadmissible, any in-court identification is also inadmissible. Simmons, 390 U.S. at 383-84. On appeal, we may assume the suggestiveness of a identification procedure and move directly to the second step. Holdren v. Legursky, 16 F.3d 57, 61 (4th Cir.1994).
We agree with the district court that, even assuming the initial procedure was impermissibly suggestive, Gooch‘s identification was reliable and thus admissible. We have explained that five factors should be considered in assessing the reliability of an out-of-court identification: (1) the witness‘s opportunity to view the suspect at the time of the crime; (2) the witness‘s degree of attention at the time of the crime; (3) the accuracy of the witness‘s initial description of the suspect; (4) the witness‘s level of certainty in making the identification; and (5) the length of time between the crime and the identification. Saunders, 501 F.3d at 391. “In addition, courts may consider other evidence of the defendant‘s guilt when assessing the reliability of the identification.” Id. (internal quotation marks and alterations omitted).
Applying these factors, Gooch‘s identification was reliable. First, Gooch was certain that Simmons was the person in the hallway, and Gooch was personally familiar with Simmons because they lived in the same apartment complex. While Gooch and Simmons lived on different floors, Goоch‘s girlfriend, whom Gooch was visiting that day, lived next to Simmons. After the shooting, Gooch had Ruthers immediately dial 911 and identify, by name, Simmons as the perpetrator. The actual identification was made one half-hour after the shooting. Gooch had a good opportunity to view Simmons‘s approach and exit from the apartment complex and recognized his car. In addition, two other witnesses, Ruthers and Sealey, placed Simmons in the apartment building. Likewise, Conley also identified Simmons at trial as the man that she spoke with that day.
Because Gooch‘s identification was reliable, the district court correctly permitted his in-court testimony and identification.
C.
Simmons asserts that the district court erred in denying his motion to suppress the GSR test taken at the Bellaire Police Department. In addressing the denial of a motion to suppress evidence, we review the district court‘s findings of historical fact for clear error, “giving duе weight to inferences drawn from those facts by resident judges and local law enforcement officers.” Ornelas v. United States, 517 U.S. 690, 699, 116 S.Ct. 1657, 134 L.Ed.2d 911 (1996). We review de novo the ultimate legal conclusion. Id. And, “[b]ecause the district court denied the motion to suppress, we construe the evidence in the light most favorable to the Government.” United States v. Perkins, 363 F.3d 317, 320 (4th Cir.2004).
The Fourth Amendment provides that “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated ....”
The magistrate judge, after conducting an evidentiary hearing, concluded that Simmons was lawfully arrested and that, given the inherent destructibility of gun-shot residue evidence, the police were permitted to run the GSR test without a warrant. The district court adopted that recommendation, and we conclude that the district court correctly denied the motion to suppress.
Recently, the Fifth Circuit concluded that a GSR test is a reasonable search incident to arrest. United States v. Johnson, 445 F.3d 793, 795-96 (5th Cir.2006). As the court explained, “[b]ecause the presence of gun powder on his hands was relevant evidence that [the defеndant] (or merely time) could have eventually removed or destroyed, if his arrest was valid, the performance of the gun powder residue test was lawful, and the admission of the results at trial was proper.” Id. at 795-96. Such a result is dictated by Cupp v. Murphy, 412 U.S. 291, 93 S.Ct. 2000, 36 L.Ed.2d 900 (1973), in which the Supreme Court concluded that police, consistent with the Fourth Amendment, could take fingernail samples incident to a lawful arrest. Id. at 295-96. In Cupp, the Court explained the basis for the search incident to arrest doctrine was the belief that “it is reasonable for a police officer to expect the arrestee to use any weapons he may have and to attempt to destroy any incriminating evidence then” Court concluded that the police were justified in performing a “very limited search necessary to preserve the highly evanescent evidence they found under his fingernails.” Id.
Likewise, the GSR test in this case was constitutional. Simmons does not contest the lawfulness of his arrest, and, given that cоncession, the GSR test, a “very limited search,” was appropriate as a search incident to arrest. In the alternative, exigent circumstances also justify the search because Simmons was requesting to use the bathroom and both parties agree that washing his hands could have removed any gun-shot residue. The district court did not err in denying the motion to suppress.
D.
Simmons also challenges the district court‘s decision to permit testimony regarding the shooting in ordеr to prove Simmons‘s possession of ammunition, arguing that the evidence was inadmissible under Federal Rules of Evidence 404(b) and 403. We review evidentiary rulings of the district court for abuse of discretion. United States v. Delfino, 510 F.3d 468, 470 (4th Cir.2007). We will not “vacate a conviction unless we find that the district court judge acted arbitrarily or irrationally in admitting evidence.” United States v. Benkahla, 530 F.3d 300, 309 (4th Cir.2008) (quoting United States v. Ham, 998 F.2d 1247, 1252 (4th Cir.1993)).
Under
Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.
Applying these standards, we have little difficulty concluding that the district court did not abuse its discretion in admitting the challenged evidence. First, evidence of the shooting satisfied
III.
For the foregoing reasons, we affirm the district court‘s judgment. Simmons‘s motions to file supplemental briefs are denied. We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before thе court and argument would not aid the decisional process.
AFFIRMED.