UNITED STATES of America, Plaintiff-Appellee, v. Wyatt HENDERSON, Defendant-Appellant.
No. 04-11545.
United States Court of Appeals, Eleventh Circuit.
May 23, 2005.
409 F.3d 1293
AFFIRMED.
Jennifer Levin, U.S. Dept. of Justice, Civil Rights Div., Jessica Dunsay Silver, U.S. Dept. of Justice, Washington, DC, for Plaintiff-Appellee.
Before BARKETT, HILL and FARRIS*, Circuit Judges.
BARKETT, Circuit Judge:
Wyatt Henderson appeals his conviction and sentence after a jury trial for: (1) use of excessive force under color of law in violation of
The charges against Henderson stem from accusations that he unlawfully pistol-whipped an arrestee, Christopher Grant, while a corporal with the Charlotte County, Florida, Sheriff‘s Department and then falsified the report of the incident. On appeal, Henderson asserts that the district court made various evidentiary errors that entitle him to a new trial, erroneously excluded police officers from jury selection in violation of his Sixth Amendment right to a grand and petit jury selected from a group representing a fair cross-section of the community, and erred in sentencing him to 87 months imprisonment.
I. BACKGROUND
Christopher Grant had been targeted by the Charlotte County Sheriff‘s Department‘s Vice and Organized Crime Component (VOCC) for selling marijuana. VOCC officers set up an undercover sting operation to arrest Grant, attempting to apprehend him in a parking lot. However, Grant fled the area in his minivan before officers could detain him.
Henderson, who had been stationed in an unmarked car within view of the parking lot, pursued and stopped Grant on the side of the road. Stopping his car almost parallel to Grant‘s van, Henderson pointed his service weapon at Grant and ordered him out of his car and onto his knees with his hands in view. Grant testified that he complied, exiting the car and kneeling on the ground with his hands on his head.1 Detective Keith Bennett, who had arrived at the scene shortly after Henderson, testified that Henderson approached Grant with his gun still in his right hand, placed a knee on Grant‘s back and using his substantial weight advantage, “rode him to the ground.” On the way down, Grant‘s chin struck the pavement.2 At this time, Grant testified that he saw a “black object” coming towards his head, and was forcefully struck in the jaw with a force he compared to that of a “mack truck.” Detective Bennett corroborated this testimony, stating that once Grant was prone and offering no resistance, he saw Henderson‘s gun arm move to strike Grant. In contrast, Henderson testified that he put his gun in his car before approaching Grant because
* Honorable Jerome Farris, United States Circuit Judge for the Ninth Circuit, sitting by designation.
After the incident, both at the scene of the arrest and back at the police station, detectives testified that Henderson made incriminating statements to the effect that he had in fact struck Grant with his pistol. Notably, Detectives Bennett and Jack Collins stated that when informed that he was to write a report about what happened at the scene, Henderson threw a cellular telephone across the room and replied, “Jesus Christ, you can‘t pistol-whip anybody any more,” or something to that effect, and said that he needed to wipe DNA off of his gun.
Detectives Bennett and Collins further testified that Henderson told other VOCC officers—his subordinates—not to include details of the arrest in their own police reports. Detective Bennett also testified that Henderson told him to deny that he had struck Grant. Allegedly fearing retaliation by Henderson, his boss, Bennett omitted any statement about a pistol-whipping. Bennett also testified that Henderson was very angry when he discovered Bennett was filing a supplemental report about the incident, and accused him of betrayal. Ultimately, one detective submitted a report directly to Henderson‘s supervisor stating that Grant questioned officers after his arrest about being pistol-whipped.
Henderson‘s report, on the other hand, stated that “no force” had been used in the arrest, and made no mention of striking Grant. In a subsequent interview with an FBI agent investigating Grant‘s allegations of excessive force, Henderson represented that he had thrown his gun into his car before approaching Grant, forming the basis of the charge that Henderson made a false statement “material” to the investigation.
Henderson‘s arguments on appeal relate to evidentiary rulings, jury selection and sentencing and we address each in turn.
II. EVIDENTIARY ISSUES
We review evidentiary rulings for an abuse of discretion. Morro v. City of Birmingham, 117 F.3d 508, 513 (11th Cir. 1997), cert. denied, 523 U.S. 1020, 118 S.Ct. 1299, 140 L.Ed.2d 465 (1998). However, basing an evidentiary ruling on an erroneous view of the law constitutes an abuse of discretion per se. Conroy v. Abraham Chevrolet-Tampa, Inc., 375 F.3d 1228, 1232 (11th Cir. 2004).
Henderson argues that six evidentiary rulings entitle him to a reversal of his conviction: (1) excluding evidence of a domestic dispute involving Detective Collins, a witness for the government, which, Henderson asserts, would have shown Collins’ bias against him; (2) permitting Collins to testify that he found Grant‘s version of the incident to be credible; (3) admitting the opinion of Grant‘s oral surgeon as to the cause of his facial injuries, when the government failed to give timely notice designating her as an expert witness; (4) excluding polygraph evidence favorable to Henderson; (5) excluding testimony by an expert on police procedure offered by Henderson; and (6) admitting evidence that the sheriff who had originally hired Henderson had been removed for misconduct. He also claims that even if these errors, viewed separately, were harmless, their cumulative effect was not, and entitles him to a new trial.
1. Bias Evidence Concerning Detective Collins
At trial, Henderson sought to show that Collins was biased against him because Henderson had transferred Collins
The government argues, as a threshold issue, that we may only review Henderson‘s objection to the exclusion of this “bias” evidence for plain error because Henderson never made an offer of proof to the trial court about what the excluded evidence would have shown. Collins v. Wayne Corp., 621 F.2d 777, 781 (5th Cir. 1980).3 Under
The record contains no evidence that Henderson made any effort to advise the court at any time during trial of the nature of the evidence sought to be elicited, something that Henderson‘s counsel also admitted at oral argument. But, in any event, exclusion of this bias evidence was not an abuse of discretion even under a preserved error standard.
On direct examination, Collins testified about his initial reports regarding Grant‘s arrest and stated that he initially thought Grant‘s injury occurred when his chin hit the ground. He also testified to Henderson‘s multiple, incriminating comments in the days after the arrest, including Henderson‘s statement that “you can‘t pistol-whip anybody any more.” On cross-examination by Henderson‘s counsel, Collins was asked if he considered Henderson‘s explanation that Grant was injured as part of the take-down during arrest to be credible at the time he prepared his report of the incident. Collins responded affirmatively. On redirect, when the government explored Collins’ initial views about the incident, Collins explained that he initially believed Henderson because many arrestees claim that they have been harmed by an officer. When asked whether, notwithstanding his initial views, there came a time when he found Grant‘s claim to be credible, Collins also answered affirmatively. Henderson argues that because a determination of witness credibility is the sole province of the jury, this testimony rendered his trial fundamentally unfair in violation of his due process rights.
The Federal Rules of Evidence preclude a witness from testifying as to the credibility of another witness.
However, in this case, the government was not attempting to substitute Detective Collins’ judgment about Grant‘s credibility for the jury‘s through the contested testimony. Rather, it sought to respond to questions on cross-examination that attempted to discredit Collins because, even though Grant told Collins at the scene of the arrest that someone had hit him with a pistol, Collins did not note Grant‘s accusations on police reports he compiled and filed shortly after the arrest. Henderson‘s cross-examination elicited Collins’ testimony that Henderson‘s account of what happened at the scene seemed credible to Collins at the time and Grant‘s accusations did not sound believable. On redirect, the government sought to establish why Collins had changed his mind, eliciting Collins’ explanation that although he did not believe Grant at first, he came to believe him later because of Henderson‘s behavior in the days after the arrest. It was only after observing Henderson‘s behavior and comments in the days following the incident that Collins felt that Grant might be telling the truth, and therefore decided to take action. The testimony that Collins found Grant‘s story to be credible was not offered to prove Grant‘s or Henderson‘s truthfulness as witnesses; instead, it explained why Collins waited to report Henderson‘s potential misconduct.
Although such testimony might be improper if the government had attempted to use this line of questioning as an indirect way of bolstering Grant‘s credibility or attacking that of Henderson, cf. United States v. Samara, 643 F.2d 701, 705 (10th Cir. 1981), that is not the case here. The district court did not abuse its discretion by permitting Collins’ testimony.
3. Testimony of Dr. Patricia Scott, Oral Surgeon
To establish that Grant sustained additional injuries to his jaw from the alleged pistol-whipping, the government offered the testimony of an oral surgeon, Dr. Patricia Scott. The government initially
Non-expert (or lay) witnesses may only testify to opinions or inferences “which are (a) rationally based on the perception of the witness, and (b) helpful to a clear understanding of the witness’ testimony or the determination of a fact in issue, and (c) not based on scientific, technical, or other specialized knowledge within the scope of Rule 702.”
In this case, it is certainly arguable that although Dr. Scott was the treating physician, her opinion regarding the cause of Grant‘s injuries was not helpful to a clear understanding of her decision making process, nor did it pertain to Grant‘s treatment. See Davoll v. Webb, 194 F.3d 1116, 1138 (10th Cir. 1999) (“A treating physician is not considered an expert witness if he or she testifies about observations based on personal knowledge, including the treatment of the party.“); Weese v. Schukman, 98 F.3d 542, 550 (10th Cir. 1996) (commenting that doctor‘s lay opinions “were based on his experience as a physician and were clearly helpful to an understanding of his decision making process in the situation.“). Dr. Scott did not need to determine how Grant was injured to treat him in this case. Her diagnosis of the injury itself, that Grant‘s jaw was fractured, would be permissible lay testimony, but her statement about the cause of the injury was, as she admitted, a “hypothesis.” And the ability to answer hypothetical questions is “[t]he essential difference” between expert and lay witnesses. Asplundh Mfg. Div. v. Benton Harbor Eng‘g, 57 F.3d 1190, 1202 n. 16 (3d Cir. 1995) (quoting Teen-Ed Inc. v. Kimball Int‘l, Inc., 620 F.2d 399, 404 (3d Cir. 1980)); see also Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 592, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993).
However, assuming that the admission of this statement was error, we apply the harmless error standard to erroneous evidentiary rulings.
Because we do not harbor a grave doubt that the jury would have changed its verdict on any of the three charges had it not heard Dr. Scott‘s statement, we find any error harmless. The statement at issue was not integral to the prosecution‘s case, as the government offered significant non-medical testimony from other witnesses supporting the conclusion that any such injury was indeed caused by unlawful use of force. See Hands, 184 F.3d at 1331-33
More important by far was Dr. Scott‘s unobjected-to testimony that the left side of Grant‘s jaw indeed suffered a fracture. The fact that Grant was injured on the left side of his jaw, and not the doctor‘s speculation as to how it occurred, was the critical point in the government‘s case because the government introduced significant evidence linking any injury in that area of Grant‘s body to unlawful use of force by Henderson. In fact, the prosecution need not even have proved that Grant‘s jaw was fractured in order to secure Henderson‘s conviction; it only had to prove that Henderson‘s alleged strike injured Grant in some way. In particular, evidence of Grant‘s injury combined with Detective Bennett‘s eyewitness account of seeing Henderson strike Grant with a black object in his hand and Detective Bennett‘s and Collins’ testimony about Henderson‘s subsequent statements, would have been sufficient in and of itself to support a guilty verdict for unlawful use of force. See Frazier, 387 F.3d at 1266-67 (noting that presence of other substantial evidence regarding the defendant‘s guilt supported finding of harmless error).4 Also, the prosecution raised enough questions about Henderson‘s own account of Grant‘s arrest that a jury could reasonably have disbelieved his story of what happened. Cf. United States v. Bennett, 848 F.2d 1134, 1139 (11th Cir. 1988) (“[A] defendant‘s implausible explanation may constitute positive evidence in support of a jury verdict.“). For the foregoing reasons, we find no reversible error.
4. Exclusion of Henderson‘s Polygraph Evidence
Before trial, Henderson made a motion in limine to admit the results of two polygraph examinations, one performed at the request of the FBI and another performed by a private examiner at Henderson‘s request. Both tests returned inconclusive results after an initial battery of questions, and indicated that Henderson responded truthfully to a second round of questioning. A magistrate judge recommended that the district court deny the motion because the evidence did not satisfy the requirements of Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993), and was also inadmissible under
United States v. Piccinonna, 885 F.2d 1529 (11th Cir. 1989) (en banc) restricts the use of polygraph evidence in this Circuit to only two contexts. A district court may admit polygraph evidence when the parties
It is the second category which concerns us here. To admit polygraph evidence to impeach or corroborate a witness’ testimony, the proponent must satisfy three conditions. Piccinonna, 885 F.2d at 1536. First, it must provide adequate notice to the opposing party that it will offer polygraph evidence. Id. Second, the opposing party must be given a “reasonable opportunity to have its own polygraph expert administer a test covering substantially the same questions.” Id. Third, the Federal Rules of Evidence for the admissibility of corroboration or impeachment testimony will govern the proffer. Id.
We find that even if the admission of the polygraph evidence was proper to corroborate Henderson‘s testimony under Piccinonna, the district court did not abuse its discretion in excluding it under
- whether the theory or technique can be and has been tested;
- whether the theory or technique has been subjected to peer review and publication;
- the known or potential rate of error for that theory or technique;
- the existence and maintenance of standards controlling the theory or technique‘s operation; and
- whether the theory or technique has attained general acceptance within the relevant scientific community.
Id. at 593-94; Gilliard, 133 F.3d at 812. In determining whether the evidence appropriately assists the trier of fact, the Daubert Court underlined the enhanced importance and role
The magistrate judge excluded Henderson‘s proffered polygraph evidence as not constituting scientific knowledge and as being insufficiently relevant. She analyzed all five Daubert factors in coming to her first conclusion, finding that polygraph techniques were subject to peer review and publication but concluding that none of the four remaining factors supported admissibility.
First, she found that the theories of polygraphy at issue could not adequately be tested. Polygraphs monitor the subject‘s physical responses to questioning. United States v. Scheffer, 523 U.S. 303, 313, 118 S.Ct. 1261, 140 L.Ed.2d 413 (1998) (plurality opinion). An examiner then interprets the physiological data and opines about whether the subject was lying. Id.
Even if we presume that Henderson sought to admit the polygraph evidence solely to corroborate Henderson‘s testimony at trial (and there is no indication from his motion in limine that such was the case), its exclusion was not an abuse of discretion under
5. Exclusion of Henderson‘s Expert on Police Procedure
Next, Henderson argues that the district court violated his fundamental right to present witnesses in his own defense by excluding expert testimony opining that Henderson‘s alleged action of throwing his gun into his car before arresting Grant was appropriate and the best decision under the circumstances. In support of this opinion, the expert was to have provided statistics about the number of officers injured with their own weapons and testimony that officers are trained to keep their service weapons out of reach during a ground fight.
The issue in this case was not whether it was proper police procedure for an officer to place his service weapon out of reach before engaging a suspect in a physical confrontation, but whether or not Henderson actually did so.
6. Admission of Evidence about the Dismissal for Misconduct of the Sheriff Who Had Hired Officer Henderson
Henderson argues that the district court impermissibly allowed the government to introduce evidence that the sheriff who had hired Henderson was removed for fraud after Grant‘s arrest but before trial. Although he does not cite any specific rule of evidence upon which to base his argument, we infer from Henderson‘s argument that this evidence established his “guilt by association” and from the cases he cites that
above, the Frye general acceptance test does not act as a bar to admission of polygraph evidence as a matter of law.” Id. at 1536. We were also careful to note that “[n]either of [the] two modifications to the per se exclusionary rule should be construed to preempt or limit in any way the trial court‘s discretion to exclude polygraph expert testimony on other grounds under the Federal Rules of Evidence.” Id. (emphasis added); see also Gilliard, 133 F.3d at 812.
Daubert, of course, held that “Frye has been superseded,” 509 U.S. at 589 n. 6, and outlined five factors that guide a district court‘s inquiry, pursuant to
III. EXCLUSION OF LAW ENFORCEMENT OFFICERS FROM THE GRAND AND PETIT JURY POOLS
The 1968 Jury Selection and Service Act,
members of the fire or police departments of any State, the District of Columbia, any territory or possession of the United States, or any subdivision of a State, the District of Columbia, or such territory or possession...public officers in the executive, legislative, or judicial branches of the Government of the United States, or of any State, the District of Columbia, any territory or possession of the United States, or any subdivision of a State, the District of Columbia, or such territory or possession, who are actively engaged in the performance of official duties.
On the other hand, a criminal defendant enjoys a Sixth Amendment right to an impartial jury trial, which includes a right to the presence of a fair cross-section of the community on venire panels, or lists from which grand and petit juries are drawn. Taylor v. Louisiana, 419 U.S. 522, 526-29, 95 S.Ct. 692, 42 L.Ed.2d 690 (1975) (petit jury); United States v. Terry, 60 F.3d 1541, 1544 (11th Cir. 1995) (grand and petit juries). To show a prima facie violation of this right, a defendant must prove:
- that the group alleged to be excluded is a “distinctive” group in the community;
- that the representation of this group in venires from which juries are selected is not fair and reasonable in relation to the number of such persons in the community; and
- that this underrepresentation is due to systematic exclusion of the group in the jury-selection process.
Duren v. Missouri, 439 U.S. 357, 364, 99 S.Ct. 664, 58 L.Ed.2d 579 (1979); Terry, 60 F.3d at 1544. The state may rebut a prima facie showing that its exemption or qualification violates a defendant‘s Sixth Amendment rights if “it may be fairly said that the jury lists or panels are representative of the community,” and that “a significant state interest is manifestly and primarily advanced by those aspects of the jury selection process...that result in the disproportionate exclusion of a distinctive group.” Duren, 439 U.S. at 367-68. This Circuit has held that the exclusion of jurors to the extent
The Middle District of Florida adopted the provisions of
Although the exemption here is somewhat broader than the exemption considered in Terry, we believe that it is still constitutional, even assuming that Henderson can show a prima facie Sixth Amendment violation. The Middle District‘s exemption does not reach much further than the exemption in Terry. Even relying on Henderson‘s figures, federal, part-time, and private law enforcement officers would only compose a fraction of the 0.55% of eligible jurors in the pool. It thus “may be fairly said that the jury lists or panels are representative of the community.” Moreover, “a significant state interest is manifestly and primarily advanced” by this somewhat broader exemption, particularly with respect to federal law enforcement officers. The exemption of individuals in part-time and private law enforcement also “manifestly and primarily” advances the same significant state interest of “allowing police officers to perform their duties without the interruption of jury service,” although not to the same extent. Thus, the Middle District‘s Jury Plan did not violate Henderson‘s constitutional rights.
Nor can Henderson prevail on his statutory argument that the Jury Plan exceeds the scope of the Act. A criminal defendant must show more than a “technical violation” of the Act to obtain relief. United States v. Tuttle, 729 F.2d 1325, 1328 (11th Cir. 1984), cert. denied, 469 U.S. 1192, 105 S.Ct. 968, 83 L.Ed.2d 972 (1985). Rather, he must show a “substantial failure to comply” with its provisions, which means the violation must have “a significant impact on the composition of an average jury.” Id. We have held that underrepresentation by an average of 1.4 persons on a 23-person jury panel does not constitute a sufficiently significant impact. United States v. Goff, 509 F.2d 825, 826-27 (5th Cir.), cert. denied, 423 U.S. 857, 96 S.Ct. 109, 46 L.Ed.2d 83 (1975). Similarly, United States v. Hawkins, 661 F.2d 436 (5th Cir. Unit B Nov. 1981),8 held that underrepresentation by two persons per 23-juror pool did not meet this standard. Id. at 443. And in Tuttle, underrepresentation of an average of 0.96 jurors from a 12-person pool was held insufficient. 729 F.2d at 1328-29. Since Henderson‘s figures state that law enforcement officers as a whole compose only 0.55% of the population in the division, the additional sweep of the Jury Plan in this case excludes, on average, less than one juror per 23-person panel. This does not constitute a significant enough impact on the composition of an average jury to violate the Act.
IV. SENTENCING ERRORS
Henderson makes several challenges to his sentence, including an argument made for the first time on appeal that Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004), and United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), render his sentence unlawful. Because Henderson‘s Blakely/Booker claim entitles him to resentencing, we do not reach his other claims.
Other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to
Because Henderson raised his Blakely/Booker challenge for the first time on appeal, we review it for plain error. United States v. Rodriguez, 398 F.3d 1291, 1297-98 (11th Cir. 2005). Under that standard, we may only grant the defendant relief when, at the time of appeal, there is: (1) error, (2) that is plain, and (3) that affects substantial rights. United States v. Cotton, 535 U.S. 625, 631, 122 S.Ct. 1781, 152 L.Ed.2d 860 (2002). Once these three requirements are satisfied, we have the discretion to provide relief if (4) the error seriously affects the fairness, integrity, or public reputation of judicial proceedings. Id.
Henderson‘s sentence is in error because it violates Booker. In this case, the district court found, by a preponderance of the evidence, that the illegal use of force involved an aggravated assault with a firearm, that Henderson used the firearm with intent to cause bodily injury, and that the aggravated assault resulted in bodily injury. Combined with other enhancements and his criminal history category of I, the guidelines provided for a sentencing range of 87-108 months. The judge imposed a sentence of 87 months, but remarked that she “[thought] that probably under the circumstances, that‘s a little high...but that‘s what the guidelines call for and that‘s what I‘m obligated to sentence him.”
This 87-month sentence exceeded the maximum authorized by the facts established by the jury verdict, and facts necessary to support that sentence—namely, those supporting the firearm-related enhancements—were not found by a jury beyond a reasonable doubt or admitted by the defendant, and did not constitute prior convictions. Thus, under Booker, Henderson‘s sentence violated his Sixth Amendment rights. See Rodriguez, 398 F.3d at 1298.
This constitutional Booker error also qualifies as “plain,” because “where the law at the time of trial was settled and clearly contrary to the law at the time of appeal—it is enough that the error be ‘plain’ at the time of appellate consider-
The error also affected Henderson‘s substantial rights, because the district judge imposed the lowest permissible sentence under the mandatory guidelines and stated that she thought the sentence was too high, but was bound by the guidelines in any case. An error that “affects substantial rights” is one that “affected the outcome of the district court proceedings.” Cotton, 535 U.S. at 632 (quoting United States v. Olano, 507 U.S. 725, 734, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993)). The defendant bears the burden of proving that the error affected his substantial rights. Olano, 507 U.S. at 734. To discharge this burden, the Supreme Court held that the defendant must establish a “reasonable probability that, but for the error,” the outcome would have been different. United States v. Dominguez Benitez, 542 U.S. 74, 124 S.Ct. 2333, 2340, 159 L.Ed.2d 157 (2004). A reasonable probability of a different result is one that is “sufficient to undermine confidence in the outcome of the proceeding.” Id. (internal quotation marks omitted) (citing Strickland v. Washington, 466 U.S. 668, 694, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), and United States v. Bagley, 473 U.S. 667, 682, 105 S.Ct. 3375, 87 L.Ed.2d 481 (1985)). In the Booker context, we therefore ask whether there is a reasonable probability that the district court would impose a lesser sentence on remand under an advisory guidelines scheme than the unconstitutional sentence it imposed under the mandatory guidelines scheme. Rodriguez, 398 F.3d at 1300-01.
At the very least, when the sentencing judge expressed an opinion that the required guidelines sentence was too severe, and, notably, sentenced the defendant to the lowest possible sentence in the guidelines range, as the judge did in Henderson‘s case, the defendant has met his burden of proving prejudice. United States v. Shelton, 400 F.3d 1325, 1332-33 (11th Cir. 2005). He also has met the fourth prong of the plain-error test because the district court expressed a desire to impose a lower sentence than the guidelines permitted, and after Booker the district court has discretion to do so. See id. at 1333-34.
Because the district court committed plain error by using facts it found by a preponderance of the evidence to enhance Henderson‘s sentence beyond the maximum authorized by the facts established by the jury‘s verdict, we vacate Henderson‘s sentence and remand this case to the district court for resentencing in accordance with Booker.
AFFIRMED in part, VACATED in part, and REMANDED.
FARRIS, Circuit Judge, concurring:
United States v. Piccinonna, 885 F.2d 1529 (11th Cir. 1989) (en banc) represented a modification to the rule then in existence requiring per se exclusion of all polygraph evidence. As the majority rightly observes, the Court was careful to emphasize that nothing in its holding was intended to limit the trial court‘s discretion to exclude polygraph evidence. 885 F.2d at 1536.
Further, Piccinonna requires that a court inclined to admit polygraph evidence ensure that such evidence comply with the Federal Rules of Evidence. Id. The majority looks to
The record also reflects significant and copious testimony from law enforcement witnesses to the incident (Detective Bennett, in particular), as well as from the victim. Further, there was the testimony of two police officers about Henderson‘s incriminating comments after the incident.
The admission of Dr. Scott‘s conclusion about the cause of the victim‘s jaw injury, if error, was harmless, since the precise nature of the injury is not an element of
In spite of my deep respect for my dissenting brother, I cannot agree, on this record, that Henderson did not receive due process of law or that his trial was fundamentally unfair.
HILL, Circuit Judge, dissenting:
Basing an evidentiary ruling on an erroneous view of the law constitutes an abuse of discretion per se. Conroy v. Abraham Chevrolet-Tampa, Inc., 375 F.3d 1228, 1232 (11th Cir. 2004). I believe the majority has applied an erroneous view of the
The district court excluded the results of two different polygraph tests, one conducted by the FBI and one conducted by a private examiner at Henderson‘s request. Both showed that he truthfully answered questions regarding the charged incident. In excluding these tests, the district court relied upon the magistrate judge‘s Daubert analysis of the admissibility of the tests.1 This analysis concluded that
I believe such a conclusion is foreclosed by our en banc opinion in United States v. Piccinonna, 885 F.2d 1529 (11th Cir. 1989). In Piccinonna, we held that “the science of polygraphy has progressed to a level of acceptance sufficient to allow the use of polygraph evidence in limited circumstances where the danger of unfair prejudice is minimized.” Id. at 1537. Furthermore, we said that as to
I am troubled as well by the rejection of Henderson‘s claim of error in the trial court‘s decision to admit some very troubling testimony by the victim‘s treating physician. The physician was not permitted to testify as an expert because the government failed to provide the defense with sufficient notice. Nonetheless, she was permitted to testify, over objection, that the victim‘s injury was the result of a blow to the left side of his face, the very conduct for which Henderson was charged. This testimony concerning the ultimate factual issue in the case could not have been more prejudicial, and I believe it to be in direct contravention of
A lay witness may offer an opinion only if it is not based on scientific, technical or other specialized knowledge within the scope of
Finally, I am also troubled by the exclusion of Henderson‘s evidence regarding proper police procedure for the officer‘s gun during a takedown,5 and the admission
Without analyzing these claims, I would note that even if none of Henderson‘s individual claims of error had been sufficient, standing alone, to give me pause as to this conviction, I am confident that all of them, taken together, are sufficient to raise grave doubts as to the fundamental fairness of Henderson‘s trial and conviction. United States v. Blasco, 702 F.2d 1315, 1329 (11th Cir. 1983) (“A piecemeal review of each incident does not end our inquiry. We must consider the cumulative effect of these incidents and determine whether, viewing the trial as a whole, appellants received a fair trial as is their due under our Constitution“). Whatever we think about the charges against him, Henderson has a right to expect that his trial will be conducted according to due process of law. After such a trial, a conviction may be relied upon not only for its correctness, but also for its fundamental fairness.
UNITED STATES of America, Plaintiff-Appellee, v. Joseph SILVESTRI, Defendant-Appellant.
No. 03-12820.
United States Court of Appeals, Eleventh Circuit.
May 23, 2005.
Notes
But the dissent overstates the scope of the en banc Court‘s holding in Piccinonna. Piccinonna predates Daubert, and its holding is specifically restricted to the admissibility of polygraph evidence under the now-defunct Frye “general acceptance test,” which prior to Piccinonna raised a per se bar to admission of polygraph evidence in this Circuit. Piccinonna, 885 F.2d at 1531-32. To quote the en banc Court, “Our holding states merely that in the limited circumstances delineated