UNITED STATES of America, Plaintiff-Appellee v. William HICKMAN, Defendant-Appellant.
No. 13-2675.
United States Court of Appeals, Eighth Circuit.
Aug. 22, 2014.
Rehearing and Rehearing En Banc Denied Oct. 3, 2014.
764 F.3d 918
ing the sexual abuse or exploitation of a minor, and (4) incorrect advice that Poe‘s Sentencing Guidelines range would be below the statutory minimum.
We only review ineffective assistance of counsel claims on direct appeal in “exceptional cases.” United States v. Sanchez-Gonzalez, 643 F.3d 626, 628 (8th Cir. 2011) (internal quotation marks omitted). Such cases exist “if the relevant factual record has been fully developed,” failure to consider the claim would result in a “plain miscarriage of justice,” or the alleged error is “readily apparent.” Id. at 628-29 (internal quotation marks omitted). Ineffective assistance of counsel claims “are generally best litigated in collateral proceedings, such as an action under
We decline to consider Poe‘s claims of ineffective assistance of counsel at this time. While some of the claims Poe presents have been previously presented to the district court and the record has been developed on those claims, the district court limited its prior grant of relief under
III.
Accordingly, we
Anne E. Gardner, AUSA, argued, Little Rock, AR, for Plaintiff-Appellee.
Arkie Byrd, argued, Little Rock, AR, for Defendant-Appellant.
Before RILEY, Chief Judge, BENTON and KELLY, Circuit Judges.
KELLY, Circuit Judge.
A jury convicted William Hickman of conspiracy to possess cocaine with intent to distribute, in violation of
I. Background
On the night of April 27, 2011, Shernetta Robinson was working on her computer at the home she shared with her boyfriend, David Tidwell, when William Hickman came to her bedroom door. Robinson had never met Hickman before, but she had seen his car at the house on previous occasions. Apparently, Hickman had been at the home with Tidwell that night: Hickman told Robinson that Tidwell left the house some time ago, had not yet returned, and was not answering his phone. Robinson and Hickman began looking for Tidwell in and around the house and continued trying to call him. After a time, they found David Tidwell‘s body lying at the side of the house.3
Instead of calling for assistance, Hickman immediately said to Robinson: “You gotta clean up and get the drugs out of the house.” At that point, the two of them returned inside and packed into a cooler almost two kilograms of cocaine that were on the kitchen counter. Hickman left with the drugs. Only then did Robinson call 9-1-1, saying she could not find her boyfriend. She did not tell authorities that she and Hickman had found his body out-side the house.4 Later that night, Robinson spoke with Tidwell‘s nephew, Antonio Adams. She told Adams that Hickman “had gotten the drugs out of the house.”
A week later, Detective Jay Massiet of the Pulaski County Sheriff‘s Office interviewed Robinson.5 During that interview, Robinson told officers for the first time about the drugs at the house on the night of Tidwell‘s death. She also identified Hickman as the man who introduced himself to her as “Scotty” and who left the house with the cocaine. She provided additional details in two subsequent interviews and identified Hickman again when she testified against him at trial.
Also at trial, the government introduced phone records that linked Hickman and Adams, showing they spoke repeatedly over the day and a half after Tidwell‘s death. An excerpt of Adams’ grand jury testimony that was admitted into evidence also corroborated Robinson‘s testimony that she had told him Hickman removed the cocaine from her house. Another witness, Quincy Bruce, testified that Tidwell was involved in distributing cocaine and “had a shipment of cocaine in” on the night of his death. Bruce, too, referred to Hickman as “Scotty” and testified that “[a]s far as I know, he‘s a worker” in Tidwell‘s drug organization. Detective Massiet testified that the police found no drugs at the Rob-inson/Tidwell home when they arrived to investigate Tidwell‘s death.
David Tidwell‘s estranged wife, Lois Neal Tidwell, also testified at trial. She last saw Tidwell at dinner the night before his death, during which he received a phone call informing him that a shipment of cocaine had arrived. She said she believed Hickman, whom she knew as “Scotty,” and Tidwell “were fairly close“; the two “grew up together.” Lois Neal Tidwell also testified about Hickman‘s and Tidwell‘s previous involvement in drug trafficking. When Tidwell was arrested in 2006, he called Lois and instructed her on how to safeguard his cocaine. She testified she was later told “to give [the cocaine] to Scotty and Scotty was the only person I was supposed to deal with as far as the drugs were concerned.” She further stated that over a one- to two-month period, she gave Hickman kilogram quantities of drugs, per Tidwell‘s instructions.
Hickman appeals the district court‘s rulings that admitted Robinson‘s identifications of him and evidence of his prior involvement in cocaine dealing. He also contends there was insufficient
II. Discussion
A. Identification
The district court admitted Robinson‘s identification of Hickman at her initial police interview and again at trial, finding these statements of identification were admissible pursuant to
We acknowledge that identifying a defendant from one photo would have a greater tendency to be impermissibly suggestive than would a photo line-up involving several people. See, e.g., id. at 694 (assuming, as did
Even if Robinson‘s initial police interview involved “an identification procedure that is both suggestive and unnecessary,” “suppression of the resulting identification is not the inevitable consequence.” Perry v. New Hampshire, ___ U.S. ___, 132 S.Ct. 716, 724-25, 181 L.Ed.2d 694 (2012). Instead, we evaluate “whether improper police conduct created a ‘substan-tial
Hickman contends the only time we may consider Robinson to have seen him was when he stood outside her bedroom, noting she told Detective Massiet that she had not clearly observed the figure in her doorway. In particular, Hickman argues we may not consider the time they spent in the kitchen together while cleaning up the cocaine: since the jury did not convict him of obstruction of justice, we may not credit Robinson‘s description of the conduct that led to that charge. However, “[a] host of reasons—sharp disagreement, confusion about the issues, exhaustion after a long trial, to name but a few—could work alone or in tandem to cause a jury to hang. To ascribe meaning to a hung count would presume an ability to identify which factor was at play in the jury room.” Yeager v. United States, 557 U.S. 110, 121, 129 S.Ct. 2360, 174 L.Ed.2d 78 (2009). The jury‘s failure to reach agreement on the obstruction of justice count does not bar us from considering evidence regarding its underlying facts when determining whether Robinson had sufficient opportunity to observe Hickman for purposes of later identifying him.
Moreover, the remaining factors point toward a reliable identification of Hickman. Robinson described in detail their joint efforts to get rid of the cocaine from the kitchen and the events of the evening more generally. She had previously identified Hickman by a specific alias and was certain of his identity once she saw his photograph. Finally, Robinson met with Detective Massiet and identified Hickman roughly one week after the night of Tidwell‘s death. We find the admission of Robinson‘s identifications during the police interview and at trial did not violate Hickman‘s right to due process. See Hines, 387 F.3d at 694 (since witness’ initial identification of defendant to police “did not create a substantial likelihood of irreparable misidentification that tainted any later identification,” district court properly admitted both a subsequent photo identification and an in-court identification).
B. Evidence of Prior Acts
Hickman contends the testimony of Lois Neal Tidwell regarding his prior involvement in cocaine distribution was improperly admitted pursuant to
(1) be relevant to a material issue raised at trial, (2) be similar in kind and close in time to the crime charged, (3) be supported by sufficient evidence to support a finding by a jury that the defendant committed the other act, and (4) not have a prejudicial value that substantially outweighs its probative value.
United States v. Turner, 583 F.3d 1062, 1066 (8th Cir. 2009) (quotation omitted). We review the district court‘s admission of evidence under
Hickman also contends this evidence was substantially more prejudicial than probative. However, his defense was that no credible testimony or physical evidence connected him to the Robinson/Tidwell house on the night in question. Having denied his involvement entirely, evidence that he had previously been involved in cocaine distribution—indeed, with the very same person—was directly relevant to both his primary defense and the crime charged. See United States v. Gaddy, 532 F.3d 783, 789-90 (8th Cir. 2008). Though Lois Neal Tidwell testified to more details than “the fact of conviction, date, and drug type,” Trogdon, 575 F.3d at 766, the court first gave a thorough limiting instruction, then asked the jurors to confirm by raising their hands that they had understood the instruction. The district court did not abuse its discretion in admitting Lois Neal Tidwell‘s testimony.
C. Sufficiency of the Evidence
Finally, Hickman contends there was insufficient evidence presented for the jury to convict him of conspiracy to possess cocaine with intent to distribute. “We review de novo the sufficiency of the evidence, examining the evidence in the light most favorable to the jury verdict and giving the verdict the benefit of all reasonable inferences. The verdict will not be disturbed unless no reasonable construction of the evidence will support the jury‘s verdict.” United States v. Wintermute, 443 F.3d 993, 1003 (8th Cir. 2006) (quotation omitted). To convict Hickman, the jury had to find beyond a reasonable doubt that (1) “on or before April 27, 2011, two or more persons reached an agreement or came to an understanding to possess with intent to distribute a controlled substance, cocaine“; (2) “Hickman voluntarily and intentionally joined in the agreement or understanding, either at the time it was first reached or at some later time while it was still in effect“; and (3) “at the time Hickman joined in the agreement or understanding, he knew the purpose of the agreement or understanding.” See United States v. Bradley, 643 F.3d 1121, 1124 (8th Cir. 2011).
Hickman argues Robinson was the only witness to his presence at her house on the night of April 27, and her testimony should be discounted. As above, he disputes whether she could accurately identify him. He also raises questions regarding both her conduct that night and her subsequent account to police, calling her credibility into doubt. However, Hickman‘s arguments concerning Robinson‘s testimony “are properly characterized as
Hickman contends the only other person to link him to Robinson‘s home that night was Antonio Adams, whose trial testimony was inconsistent with his grand jury testimony and with his police interview. In particular, Adams testified before the grand jury that he had spoken with Hickman on the phone that night, and Hickman told him he had taken something out of the house: “I don‘t know if it was money or drugs or, you know, what it was.” At trial, Adams denied having made these statements. These inconsistencies were revealed to the jury when the government introduced into evidence the relevant portions of Adams’ grand jury testimony during his direct examination. Hickman then questioned him further on cross-examination. Again, we cannot review the jury‘s credibility determination; moreover, at this stage we “resolv[e] all evidentiary conflicts in favor of the government,” Wintermute, 443 F.3d at 1003, and Detective Massiet corroborated Adams’ grand jury testimony. He testified that phone records indicated Adams and Hickman spoke on the night of Tidwell‘s death, and about twenty times during the following day and a half. Massiet further stated that Adams “indicate[d] to [him] that Scotty removed packages from the home.” Finally, Lois Neal Tidwell‘s testimony corroborated Hickman‘s prior involvement in cocaine distribution, and she and Bruce both testified Tidwell had received a shipment of drugs just before the night in question—drugs that were not discovered at his home by the police investigating his death. In sum, a reasonable juror could find that Hickman was guilty of the conspiracy charge.
III. Conclusion
For the reasons above, we affirm Hickman‘s conviction.
KELLY
CIRCUIT JUDGE