United States v. SimmonsUnited States v. Simmons
RHESA HAWKINS BARKSDALE, Circuit Judge:
Convicted of sexual assault under color of law, involving aggravated sexual abuse, in violation of
I.
In September 1999, Simmons and Thomas Catchings, both Jackson Police Department (JPD) officers, assisted another officer during the stop of an automobile containing 19-year-old passenger Syreeta Robinson and her boyfriend, Towaski Bell. After discovering marijuana in Robinson‘s possession, Simmons confiscated it, arrested and handcuffed her, and placed her in the back of his police vehicle. Bell, who was arrested for possessing marijuana and making false statements to a police officer, was placed in the back of Catchings’ police vehicle. Before leaving the scene, Simmons told Catchings that Robinson “wanted to have sex” with Simmons.
Simmons and Catchings proceeded in their police vehicles to the police station, where Simmons waited in his vehicle with Robinson while Catchings took Bell inside for booking. After Catchings emerged from the police station, Simmons radioed him and asked him to follow Simmons’ police vehicle. After departing from the police station, Simmons stopped his vehicle, removed Robinson‘s handcuffs, and
Robinson, who was sobbing, was driven home by Catchings. He warned her not to tell anyone about the incident. Nevertheless, shortly after reaching home, Robinson told her boyfriend‘s mother and a friend about the night‘s events. Several days later, Robinson visited a rape-crisis center. But, fearing possible repercussions from the police, Robinson did not report the sexual assault until October 2000, approximately a year after the incident.
In November 2001, Simmons and Catchings were jointly tried in Mississippi state court for sexual battery and conspiracy to commit sexual battery. Simmons testified, denying having sex with Robinson. Although both men were acquitted, Simmons was terminated by the JPD in 2002 because of the incident with Robinson.
Simmons later became a police officer at Fort Hood, Texas. Two of his fellow officers there testified Simmons told them he had sex with a woman on, and in, his police vehicle while another officer was present, which resulted in Simmons’ termination by the JPD.
In September 2004, a federal grand jury indicted Simmons on one count of sexual assault under color of law, in violation of
Simmons was sentenced, inter alia, to 240 months in prison. In imposing sentence, the district court sustained Simmons’ objection to Guidelines
II.
Simmons’ claims fail. The Government‘s challenge to the sentence succeeds for the denial of the “custody” enhancement. Accordingly, because we remand for resentencing, we do not decide the Government‘s claim that the imposed sentence was not reasonable.
A.
Simmons presents the following contentions: (1) the evidence was insufficient for his conviction; (2) a Government expert witness should not have been permitted to testify about rape-victim conduct; (3) admitting excerpts of his state-trial testimony violated
Simmons maintains the evidence was insufficient because the Government produced no physical or medical evidence due to the sexual assault‘s not being reported for more than a year after the incident; and Robinson‘s testimonial inconsistencies undermined her credibility. For these reasons, and because, according to Simmons, no evidence showed he used force or Robinson experienced pain, Simmons claims the evidence was insufficient to support his aggravated-sexual-abuse conviction. At the close of both the Government‘s case-in-chief and all the evidence, Simmons moved for judgment of acquittal on these grounds, pursuant to
The denial of such a motion is reviewed de novo. United States v. Meyers, 104 F.3d 76, 78 (5th Cir.), cert. denied, 520 U.S. 1218 (1997). Simmons’ having timely moved for such judgment, the usual standard of review is employed: the verdict will be affirmed “if a reasonable trier of fact could conclude from the evidence that the elements of the offense were established beyond a reasonable doubt“. United States v. Delgado, 256 F.3d 264, 273 (5th Cir. 2001). As is more than well established for this review, we evaluate neither the weight of the evidence nor the credibility of the witnesses. Id. That is for the jury. E.g., United States v. Holmes, 406 F.3d 337, 351 (5th Cir.) (the jury “retains the sole authority to weigh conflicting evidence and evaluate the credibility of witnesses“) (internal quotations omitted), cert. denied, 126 S.Ct. 375 (2005). All the evidence and reasonable inferences are viewed in the light most favorable to the verdict. E.g., United States v. Carillo-Morales, 27 F.3d 1054, 1064 (5th Cir. 1994), cert. denied, 513 U.S. 1178 (1995); United States v. Marshall, 762 F.2d 419, 423 (5th Cir. 1985) (in viewing all of the evidence, we do not ask whether it was properly admitted).
a.
Simmons’ challenges to the lack of physical and medical evidence of the sexual assault and to Robinson‘s credibility are unavailing. Nothing in
Catchings testified: then a JPD officer, he acted as a “lookout” while Simmons had sex with Robinson, and Simmons invited him to have sex with her. Robinson‘s boyfriend‘s mother and Robinson‘s friend testified Robinson telephoned them in the early morning hours following the sexual assault, distraught over the incident. Two others confirmed Robinson visited a rape-crisis center a few days later. The center‘s director testified Robinson appeared “traumatized“. Although Simmons did not testify, excerpts of his prior state-court
“[A] defendant‘s exculpatory statements which are shown by other evidence to be false may give rise to an inference of consciousness of guilt“. United States v. Villarreal, 324 F.3d 319, 325 (5th Cir. 2003). Evidence of the falsity of Simmons’ prior statements, in conjunction with Robinson‘s testimony and the testimony of the Fort Hood Police Officers and other witnesses, was sufficient for a reasonable jury to conclude Simmons sexually assaulted Robinson.
b.
The evidence was also sufficient to prove the assault involved “aggravated sexual abuse“, in violation of
“A defendant uses force within the meaning of
Added to the corroborating testimony discussed supra (including Catching‘s testimony he served as a “lookout“), this evidence is sufficient for a reasonable jury to find beyond a reasonable doubt that Simmons committed sexual assault involving aggravated sexual abuse. Accordingly, the evidence was sufficient for conviction.
2.
Simmons challenges the expert testimony of Dr. Louise Fitzgerald being permitted. Admission of such testimony is reviewed under the following abuse of discretion standard: “District courts enjoy wide latitude in determining the admissibility of expert testimony, and the discretion of the trial judge and his or her decision will not be disturbed on appeal unless manifestly erroneous.” United States v. Tucker, 345 F.3d 320, 326 (5th Cir. 2003) (quoting Watkins v. Telsmith, Inc., 121 F.3d 984, 988 (5th Cir. 1997)) (emphasis added). Of course, even if the court erred in allowing the testimony, its ruling will not be disturbed unless the error was harmful, affecting a substantial right of the complaining party. E.g., Bocanegra v. Vicmar Servs., 320 F.3d 581, 584 (5th Cir.), cert. denied, 540 U.S. 825 (2003). See
a.
Simmons contends Dr. Fitzgerald‘s testimony failed to satisfy the requirements of Daubert v. Dow Pharmaceuticals, 509 U.S. 579 (1993). Daubert held: when assessing the admissibility of expert testimony, trial courts must determine “whether the expert is proposing to testify to (1) scientific knowledge that (2) will assist the trier of fact to understand or determine a fact in issue“. Id. at 592. “[C]onfident that federal judges possess the capacity to undertake this review“, Daubert nevertheless provided guiding factors it described as neither exhaustive nor definitive. Id. at 593. They include: (1) whether the theory or technique underlying the expert‘s testimony has been tested; (2) whether it has been subjected to the rigors of peer review and publication; (3) whether it has any known rate of error and standards for controlling such error; and (4) whether the theory or technique has attained “general acceptance” within the relevant expert community. Id. at 593-94; see also
Dr. Fitzgerald was awarded a Ph.D. in psychology in 1979. At the time of trial, she was a licensed psychologist and a university professor of psychology, specializing in sexual violence and sexual victimization. Simmons objected to Dr. Fitzgerald‘s expert qualification and testimony because: she had not conducted research on memory; her research was founded on unreliable data and methodology; and her opinions went to the ultimate credibility of Robinson, the victim. The district court overruled the objection, reasoning that the testimony would be sufficiently reliable and helpful. It instructed the jury it could credit or discredit expert testimony as it could any other testimony.
Simmons claims the testimony should not have been admitted under Daubert because it relied on scientifically suspect methodology. Noting that Dr. Fitzgerald‘s indicia of rape-victim behavior (e.g., non-reporting to police and feelings of shame, humiliation, and self-blame) were developed for therapeutic, rather than forensic, purposes, Simmons contends the testimony fails to satisfy the first and third Daubert factors: empirical validity and ascertainability of error rate. In other words, according to Simmons, research on rape necessarily is biased in favor of believing purported victims; to develop indicia of rape-victim behavior, researchers must assume, as a starting premise, the veracity of their subjects, even though there is no way to verify the percentage of subjects actually raped. Therefore, Simmons asserts: due to this inherent limitation, no empirically valid or reliable forensic diagnostic techniques can be developed, only therapeutic tools.
Obviously, these are inherent limitations for such research. Nevertheless, expert testimony drawing on it is not thereby
Second, naturally occurring circumstances, such as the social stigma attached to rape, may preclude ideal experimental conditions and controls. See, e.g., Jenson, 130 F.3d at 1297 (noting the necessarily diminished methodological precision of “soft” social sciences, particularly in areas involving sexual victimization). In such instances, other indicia of reliability are considered under Daubert, including professional experience, education, training, and observations. See, e.g., Pipitone v. Biomatrix, Inc., 288 F.3d 239, 247 (5th Cir. 2002) (finding expert‘s testimony reliable under Daubert where “based mainly on his personal observations, professional experience, education and training“). Because there are areas of expertise, such as the “social sciences in which the research, theories and opinions cannot have the exactness of hard science methodologies“, Jenson, 130 F.3d at 1297, trial judges are given broad discretion to determine “whether Daubert‘s specific factors are, or are not, reasonable measures of reliability in a particular case“. Kumho Tire Co., 526 U.S. at 153.
Third, admission of Dr. Fitzgerald‘s testimony is consistent with the holdings of other circuits. See e.g., Beauchamp v. City of Noblesville, 320 F.3d 733, 745 (7th Cir. 2003) (expert‘s citing rape research to explain victim‘s “failure to immediately notify the police that she had been raped” and her “inability to recall the details of the crime clearly” could “be consistent with that of a person who was raped“); United States v. Smith, 1998 WL 136564, at *1-2 (6th Cir. 19 March 1998) (unpublished) (admitting psychologist‘s testimony that “she was familiar with reactions of women who have been victims of rape or sexual assault and that women often do not report the incidents immediately” to rebut defendant‘s assertion that alleged victims “were unreliable because they did not immediately report their rapes and assaults“); United States v. Alzanki, 54 F.3d 994, 1006 (1st Cir. 1995) (upholding, as reliable under Daubert, testimony based on expert‘s general research and personal interaction with hundreds of abuse victims that alleged victim‘s “behavioral response to the non-sexual abuse administered by the [defendants] was consistent with the behavior of abuse victims generally“) (emphasis in original), cert. denied, 516 U.S. 1111 (1996).
b.
Simmons also contends Dr. Fitzgerald usurped the jury‘s role by testifying to the ultimate issue: whether Robinson was sexually assaulted. In this regard, Dr. Fitzgerald testified that Robinson‘s behavior following the incident, as well as her in-court testimony, were “quite consistent with that ... of rape victims“. According
Simmons’ jury-usurpation contention overlooks Dr. Fitzgerald‘s related testimony: “I never give testimony as to whether or not a rape did or did not occur“. Simmons also does not mention the district court‘s instructing the jury it could discredit any witness’ testimony. Even viewed in isolation, however, Dr. Fitzgerald‘s testimony did not impermissibly intrude upon the jury‘s determination of Robinson‘s credibility. Mental-health experts are permitted to testify that “symptoms and recollections appear[] genuine and that [the expert believes she or] he ha[s] not been ‘duped‘” by a fabricated account. Skidmore v. Precision Printing & Pkg., Inc., 188 F.3d 606, 618 (5th Cir. 1999) (holding district court did not abuse its discretion by admitting psychiatrist‘s testimony that plaintiff suffered post-traumatic stress disorder and that “he did not think [the plaintiff] had lied to him or fabricated her psychiatric symptoms“).
As in Skidmore, Dr. Fitzgerald stated Robinson‘s behavior and testimony were “quite consistent” with that of sexual-assault victims. She did not even go as far as the expert in Skidmore who, in addition to opining on the typicality of the plaintiff‘s behavior, also concluded the plaintiff had undergone a traumatic event and suffered its aftermath in the form of post-traumatic stress disorder. Id. Dr. Fitzgerald‘s testimony did not intrude on the jury‘s fact-finding function.
3.
When a party timely objects, rulings on evidentiary issues are reviewed for abuse of discretion. United States v. Polasek, 162 F.3d 878, 883 (5th Cir. 1998). See
At both a pre-trial hearing and the start of trial, Simmons objected to such evidence, claiming: his prior testimony did not qualify as an admission of a party-opponent under
a.
Because the testimony at issue was not hearsay under
Simmons’ prior testimony was not introduced for the truth of what Simmons asserted.
b.
Similarly, Simmons’ state-court testimony was not inadmissible under
c.
Finally, the Government was not collaterally estopped from introducing the state-court testimony. Collateral estoppel applies “when an issue of ultimate fact has once been determined by a valid and final judgment[;] that issue cannot again be litigated between the same parties in any future lawsuit“. United States v. Angleton, 314 F.3d 767, 776 (5th Cir. 2002) (emphasis in original) (quoting Ashe v. Swenson, 397 U.S. 436, 443 (1970)), cert. denied, 538 U.S. 946 (2003). Because the United States and the State of Mississippi “as separate sovereigns, are not the same party“, the collateral-estoppel doctrine is inapposite. Id.
4.
Simmons next claims the district court abused its discretion by admitting evidence Simmons failed to log the marijuana seized during the traffic stop. Prior to, and during, trial, Simmons moved to exclude evidence of his not doing so on the grounds it constituted
Assuming arguendo the evidence was extrinsic, not intrinsic to the charged offense, there was no error. “For admission under
Simmons’ failure to log the marijuana was both relevant to issues other than his character and probative on these issues substantially beyond its prejudicial impact. The marijuana seizure is integral to the events leading to Robinson‘s sexual assault. It also corroborates Robinson‘s testimony that Simmons did not go inside the police station prior to the assault. Moreover, it suggests Simmons did not want JPD attention turned to Robinson; if she were charged and interrogated for the marijuana possession, she might reveal the sexual assault.
5.
Simmons maintains the district court abused its discretion by allowing the Government, in closing argument, to state he kidnapped Robinson. The Government argued:
The evidence clearly establishes that the defendant placed Syreeta [Robinson] in fear of death, serious bodily injury, or kidnapping. First of all, he had already kidnapped her. And the reason that kidnapping is one of the of the factors that raises this to aggravated sexual abuse is because of the very terror that Syreeta told you about, the fear that she
experienced when she was taken out to this remote location with two armed officers ....
At trial, Simmmons objected pursuant to
Simmons maintains the Government violated
Contrary to Simmons’ assertions, the Government’s kidnapping statements were not a proffer of bad acts to demonstrate bad character and subsequent behavior in conformity therewith. Instead, they were offered to assist in showing Robinson complied with Simmons’ sexual demands because she feared for her life. Even if the statements were improper, they did not amend the indictment or alter the essential elements the Government had to establish to convict Simmons.
We further note that, as with any such abuse of discretion claim, assuming arguendo the Government’s statements were erroneously permitted, Simmons had to show further they affected his substantial rights; the comments must have been so prejudicial as to affect the outcome of the proceeding. United States v. Saldana, 427 F.3d 298, 314 (5th Cir.), cert. denied, 126 S.Ct. 810 (2005). In the light of all the evidence and reasonable inferences drawn therefrom, the kidnapping comment did not prejudice the jury by suggesting any action not already presented to it by inference. As the district court ruled, it was a fair inference.
6.
Finally, Simmons maintains the district court reversibly erred by refusing his request to instruct the jury he was acquitted in state court. He made this request after the Government referred to “the state trial” in a redirect-examination question to the victim. This violated a motion-in-limine ruling instructing the parties to refer to that trial as “prior proceedings”. Simmons twice moved for a mistrial based on the alleged prejudicial effect of the Government’s statement; it was denied each time.
Refusing to give a requested instruction is reviewed for abuse of discretion. See United States v. De La Rosa, 171 F.3d 215, 219 (5th Cir. 1999). Further, a ruling that the Government’s statements, even though violative of a prior ruling, did not prejudice the defendant is also reviewed for abuse of discretion; again, the defendant must show the statements affected his substantial rights. See United States v. Morrow, 177 F.3d 272, 298 (5th Cir.), cert. denied, 528 U.S. 932 (1999). For obvious reasons, “[t]he district judge’s assessment of the prejudicial effect carries considerable weight”. Id.
“[A]s a general matter, a trial court does not abuse its discretion in excluding evidence of a prior acquittal on a related charge”. De La Rosa, 171 F.3d at 219. Such evidence “is not relevant because it does not prove innocence but rather merely indicates that the prior prosecution failed to meet its burden of proving beyond a reasonable doubt at least one element of the crime”. Id. (internal quotation omitted). In addition, a judgment of acquittal is hearsay that does not satisfy an exception to the hearsay rules. Id. Finally, such evidence is often excludable under
Nevertheless, Simmons contends the reference to “the state trial”, coupled with testimony that he was terminated by the JPD, created an inference of prior adjudicated guilt so prejudicial that instructing the jury on his prior acquittal was merited. Of course, the jury could have inferred plausibly either the Government was referring to the state trial of Catchings or that Simmons was not convicted in the earlier state trial. Given these plausible inferences, and the isolated reference to “the state trial” (of which Simmons’ lead counsel admitted, to the district court, not being aware until advised much later by co-counsel), we conclude the court did not abuse its discretion by refusing the requested state-trial-acquittal instruction.
B.
The two remaining issues are presented by the Government’s cross-appeal: (1) whether the district court, in calculating the Guidelines range, erred by refusing to impose
1.
Although, pursuant to Booker, the district court did not impose a mandatory Guidelines sentence, it was still required,
The 1998 version of the Guidelines, in effect at the time of Simmons’ September 1999 offense, was applied because it was found less punitive than the 2004 version in effect at the time of sentencing. Although the Presentence Investigation Report, based on the 1998 version, recommended a total offense level of 43, corresponding to a sentence of life imprisonment, the district court concluded the offense level was instead 41, corresponding to a sentencing range of 324-405 months. It included in its Guidelines calculation both a six-level “color of law” enhancement under
a.
As the Government contends, this “double-counting” ruling was erroneous. Application of both
In contrast, a
Moreover, even assuming arguendo
b.
Along this line, rather than rely upon the district court’s basis for not applying the enhancement, Simmons maintains, as he did for sentencing, that
At the time of the offense, the victim was 19 years of age. Therefore, Simmons contends
As the applicable 1998 Guidelines’ plain language makes clear, however,
Robinson, then 19, was arrested, handcuffed, and placed in the back of Simmons’ police vehicle. He was an on-duty JPD officer. Catchings, another on-duty JPD officer, was aware Robinson was in Simmons’ police vehicle. Accordingly, for numerous obvious reasons, she was “entrusted” to Simmons’ care and supervision. Robinson remained under his control, and in his custody, during the relevant events,
In sum, the district court misapplied
2.
The 240-months sentence imposed by the district court was 84 months less than the low end of the Guidelines range (calculated erroneously by the district court, as discussed above). The Government claims the sentence is unreasonable because the district court failed to properly consider factors contained in
Nevertheless, in our supervisory capacity, as well as to assist the district court on remand, we note the following Guidelines policy statement from the applicable 1998 version: “Age ... is not ordinarily relevant in determining whether a sentence should be outside the applicable guideline range [but] may be a reason to [depart downward] when the defendant is elderly and infirm”.
The court simply feels that a term of imprisonment of 20 years for a man who is 48 years old is a sufficient sentence in this case and serves all of the reasons for incarcerating a person for a long period of time. The court does not feel that a sentence in excess of 20 years would be beneficial either to the victim, to the public or to the defendant himself.
The court believes that a sentence within the guideline range without the departure would, in essence, put this man probably very close if not at the end of his life. And I think that 20 years of imprisonment is enough.
Pre-Booker, our court rejected this same age-based rationale. See, e.g., United States v. Fierro, 38 F.3d 761, 775 (5th Cir. 1994) (vacating sentence, which had a downward departure, the district court’s having reasoned “a 20-year sentence was long enough” for a defendant who “would be 64 or 65 when he got out of prison”; our court held, inter alia, “a defendant’s age is an improper basis for departure unless the defendant is ‘elderly and infirm’ at the time of sentencing”), cert. denied, 514 U.S. 1051 (1995).
Post-Booker, our court has not ruled on, in the light of
Although consideration of age appears not to be per se unreasonable post-Booker, a district court’s sentencing discretion, and our reasonableness-inquiry on appeal, must be guided by the sentencing considerations stated in
Accordingly, a district court should acknowledge such a policy statement and explain why the prohibited or discouraged factor, as it relates to the defendant, is so extraordinary that the policy statement should not apply. See id.; United States v. Guidry, 462 F.3d 373, 377 (5th Cir. 2006) (finding sentence unreasonable partly because district court “failed to acknowledge [relevant Guidelines] policy statement”). A district court’s failure to do so bears on the reasonableness of the sentence it imposes, as guided by the
III.
For the foregoing reasons, Simmons’ conviction is AFFIRMED; his sentence is VACATED; and this matter is REMANDED for resentencing.
CONVICTION AFFIRMED; SENTENCE VACATED; REMANDED FOR RESENTENCING