US v. Roosevelt Simmons, No. 08-5116 (4th Cir. 2010)

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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 08-5116 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. ROOSEVELT SIMMONS, Defendant - Appellant. Appeal from the United States District Court for the Northern District of West Virginia, at Wheeling. Frederick P. Stamp, Jr., Senior District Judge. (5:07-cr-00040-FPS-JES-1) Submitted: April 21, 2010 Decided: May 27, 2010 Before WILKINSON, GREGORY, and DAVIS, Circuit Judges. Affirmed by unpublished per curiam opinion. Travis R. Fitzwater, LAW OFFICE OF TRAVIS R. FITZWATER, Morgantown, West Virginia, for Appellant. Sharon L. Potter, United States Attorney, David J. Perri, Robert H. McWilliams, Jr., Assistant United States Attorneys, Wheeling, West Virginia, for Appellee. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Roosevelt Simmons appeals his conviction and sentence on one count of being a felon in possession of ammunition, in violation of 18 U.S.C. § 922(g)(1) and 924(a)(2). He contends that the district court committed reversible error in conducting a jury view of the crime scene, permitting identification testimony of Simmons, denying a motion to suppress the result of a gun-shot Simmons residue used a test firearm enhancing his sentence. (GSR while test), admitting possessing the evidence that ammunition, and For the foregoing reasons, we affirm. 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 the police for loud music several nights earlier. Simmons then left his apartment and drove to stay with his girlfriend, Nina Speights. The next morning, Simmons and Speights s cousin, Cameron Sealey, drove to Steubenville, Ohio, to place a wager on a football game. The two then drove back to the Eagle Court Apartments. Proceeding at a high rate of 2 speed, Simmons pulled up haphazardly in front of his apartment building and entered the building along with Sealey. Simmons approached apartments 322 and 323, his direct neighbors, and began banging on their doors, yelling that November 4. someone must have exited the the about the burglary on Sarah Ruthers and her boyfriend Richard Gooch were in apartment 322 at the time. entered known lot and car and Both noticed Simmons s car as it parked. Both recognized his recognized voice Simmons in the as he hallway. Although neither Ruthers nor Gooch considered themselves friends with Simmons, Gooch shared a cigarette with him on several occasions and the pair often saw Simmons coming and going from the apartment. Gooch did not open the apartment door, but a person in apartment 323, Jaime Conley, 1 did. Simmons began 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. 1 Conley was not a resident of the Eagle Court Apartments but was staying with friends in the complex at the time. 3 Gooch began watching the peephole in Ruthers s apartment. events unfold through the Gooch heard Simmons verbally abusing Conley and also saw a man he did not recognize standing further down the hallway. saw Simmons holding. pull a After Conley slammed the door, Gooch handgun from a brown paper in Ruthers. was Moments later the residents heard gunfire and the sound of breaking dishware and glass. later. he Gooch told Ruthers to call 911 and retreated back into the apartment. shots bag quick succession followed by a Gooch heard four fifth shot seconds One of the occupants of apartment 323 called 911, as did Ruthers, who had been seated in her living room looking out over the parking lot, saw the unidentified man exit the building fired. into the parking lot prior to the shots being 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 standing 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. 4 Conley also provided a description of the suspect and told officers that he lived in the building. After leaving Eagle Court, Simmons and Sealey returned to Speight 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, Police Department 2 spotted and description provided by stopped Gooch a and vehicle matching Ruthers. With the Simmons stopped, officers from the Wheeling Police Department escorted Gooch to the scene to see if he could identify Simmons. Apart from Simmons, only police officers in uniform were present at the scene when Gooch arrived. While Gooch stayed in his vehicle, Simmons was asked to stand up out of the police vehicle where he was being detained; Gooch identified Simmons as the shooter and Simmons was placed back in the car. then transported officers conducted Simmons s hands. to a the Bellaire gun-shot Police residue Simmons was Department, test (GSR where test) on At the time the officers conducted the GSR test, Simmons had been requesting to use the restroom. 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 2 Bellaire, Ohio, is located directly across the Ohio River from Wheeling, West Virginia. 5 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 dishware in Ruthers s apartment. the bullets shattered the 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 18 U.S.C. § 922(g)(1) and 924(a)(2). During the pretrial period, investigators with the Bureau of Alcohol, Tobacco, and Firearms ( ATF ), obtained letters Simmons and Speights. Speights that he and jail phone recordings between In these conversations, Simmons informed had hidden the gun in a laundry box in Speights s apartment and arranged for his sister to remove the gun. Simmons statements to approached the also suggested how In investigators. Government with Speights addition, information should a make prison that her inmate Simmons had discussed the possibility of attempting to kill or seriously injure the federal prosecutor in his case. Simmons apparently hoped that removing the prosecutor would delay his trial and provide him grounds to move for dismissal under the Speedy Trial Act. Prior to trial, Simmons moved to exclude the results of the GSR test as well as both 6 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 lot. 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 Eagle reversible Court testimony, error Apartments, denying the in conducting permitting motion to admitting evidence of the shooting. 3 a jury Gooch s suppress the view of the identification GSR test, and We address each contention in turn. 3 Simmons also contends that the district court committed reversible error in sentencing him. Specifically, Simmons argues that it violates the Sixth Amendment to impose sentencing enhancements even under an advisory Guidelines scheme and even if the resulting sentence is below the statutory maximum. Simmons concedes that his argument is foreclosed by Booker v. United States, 543 U.S. 220 (2005), but contends that Booker was wrongly decided. Booker remains binding law, however, and we thus reject Simmons s argument. 7 A. Simmons committed first reversible contends error in that the conducting a Eagle Court Apartments during the trial. district jury court view of the The federal courts recognize their inherent power to permit a jury view of places or objects outside the courtroom. is entrusted to the sound The decision to permit a view discretion of the trial court. United States v. Passos-Paternina, 918 F.2d 979, 986 (1st Cir. See also United States v. Woolfolk, 1990) (citations omitted). 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 proposed list of sites. Court Apartments and included a 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. Marshals during the view. apartments, Agent Sirbaugh suggested to Before entering the the district court, outside the presence of the jury, that the jurors look at the 8 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. counsel objected Government s sustained to that view list of sites, and The jurors completed pretrial the objection. because it was the Simmons s not on district the the court view and returned to court. On appeal, Simmons does not contest the conducting of a jury view, Sirbaugh s but rather comments, permissible crime opportunity for the scene Agent Defendant s presence. argues jury that, view inspection Sirbaugh given was transformed into to Special an testify Agent from a unconstitutional outside of the 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 reversible counsel do error during not in the believe this view either case. resolves The any situation presence constituted of Simmons s constitutional issues arising from Simmons s inability to take part in the view. See Snyder v. Massachusetts, 291 U.S. 97 (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, 9 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. both This court has held that jury views of crime scenes, court-ordered and unsupervised, are subject to harmless See Arnold v. Evatt, 113 F.3d 1352, 1361 (4th error review. 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 harmless error review). jury view of crime scene subject to In determining the possible harm of any error, this court should look to the nature and extent of the [jury s] activity and assess how that activity context of the evidence presented at trial. at 1138. reduced, fit into the Sherman, 89 F.3d The level of conjecture inherent in this inquiry is making it even more appropriate for harmless-error analysis, when the jury view is personally supervised by the judge. Arnold, 113 F.3d at 1361. reviewing court pondering all is that able to happened say, An error is harmless if a with without fair assurance, stripping the after erroneous action from the whole, that the judgment was not substantially swayed by the error. United States v. Basham, 561 F.3d 302, 327 (4th Cir. 2009) (quoting Kotteakos v. United States, 328 U.S. 750, 765 (1946)). 10 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 testified that heard they gunshots. heard Simmons drew the gun. Conley gunfire almost and Gooch immediately both after 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 suggests or that regarding Simmons s exclusion he have the apartments, but would ability he had were asked prejudicial. for to see the the opportunity different parking to Simmons site views lot do from the 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-ofcourt identification obtained 11 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 violation occurs reliable to U.S. if 377, the preclude misidentification. 384 (1968)). No identification the was substantial due process sufficiently likelihood of United States v. Johnson, 114 F.3d 435, 442 (4th Cir. 1997); see also Manson v. Brathwaite, 432 U.S. 98, 106 (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 impermissibly 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. Saunders, 501 F.3d at 389-90. If unreliable a witness s and out-of-court therefore inadmissible, identification is also inadmissible. 84. On appeal, we may photo assume identification any is in-court Simmons, 390 U.S. at 383the suggestiveness of a identification procedure and move directly to the second step. Holdren v. Legursky, 16 F.3d 57, 61 (4th Cir. 1994). 12 The exclude magistrate identification judge denied testimony Simmons s after a hearing, district court adopted that recommendation. assumed that the photo motion and to the The district court identification procedure was impermissibly suggestive but concluded that the identification was still reliable because Gooch knew Simmons personally and made the identification roughly one half-hour after the shooting. We agree with the district court that, even assuming the initial procedure identification was was reliable impermissibly and thus suggestive, admissible. Gooch s 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 reliable. these factors, Gooch s identification was First, Gooch was certain that Simmons was the person 13 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, Gooch 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. opportunity apartment other to view complex witnesses, Simmons s and recognized Ruthers apartment building. approach and his Gooch had a good and car. Sealey, exit placed the addition, In from two Simmons in the 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 denying his Bellaire motion to asserts motion Police to that suppress Department. suppress the evidence, district the GSR court test In addressing we review the the erred taken at denial district in the of a court s findings of historical fact for clear error, giving due weight to inferences drawn from those local law enforcement officers. U.S. 690, 699 (1996). facts by resident judges and Ornelas v. United States, 517 We review de novo the ultimate legal 14 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. . . . U.S. Const. amend. IV. Warrantless searches are per se unreasonable under the Fourth Amendmentsubject only to a few specifically established and well- United States v. Bush, 404 F.3d 263, delineated exceptions. 275 (4th Cir. 2005) (quoting Mincey v. Arizona, 437 U.S. 385, 390 (1978)). One of the well-recognized exceptions to the warrant requirement is a search incident to a lawful arrest. See United 2006). States v. Currence, 446 F.3d 554, 556 (4th Cir. Pursuant to this exception, law enforcement officers following a lawful arrest may search the arrestee s person and the area within his immediate control. v. California, 395 U.S. 752, 763 Id. (quoting Chimel (1969)). Another such exception is when exigent circumstances exist, situations where police officers (1) have probable cause to believe that evidence of illegal activity is present and (2) reasonably believe that evidence may be destroyed or removed before they could obtain a 15 warrant. United States v. Cephas, 254 F.3d 488, 494-95 (4th Cir. 2001). 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 defendant] (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. U.S. 291 police, Such a result is dictated by Cupp v. Murphy, 412 (1973), consistent in which with the the Supreme Fourth Court concluded Amendment, fingernail samples incident to a lawful arrest. could that take 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 16 in his possession. Id. at 295. Applying that rationale, the 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. Likewise, constitutional. arrest, and, the GSR test Id. in this case was Simmons does not contest the lawfulness of his given that concession, 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 order 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 17 300, 309 (4th Cir. 2008) (quoting United States v. Ham, 998 F.2d 1247, 1252 (4th Cir. 1993)). Under Rule 404(b), [e]vidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith. R. Evid. 404(b). to evidence charged. 1996). of The Rule 404(b) inquiry, however, applies only other acts that are extrinsic to the one United States v. Chin, 83 F.3d 83, 87 (4th Cir. [A]cts intrinsic to the alleged crime do not fall under Id. at 87- Rule 404(b)'s limitations on admissible evidence. 88. Fed. Evidence of uncharged conduct is not other crimes evidence subject to Rule 404 if the uncharged conduct arose out of the same series of transactions as the charged offense, or if [evidence of the uncharged conduct] is necessary to complete the story of the crime on trial. Siegel, 536 F.3d at 316 (quoting United States v. Kennedy, 32 F.3d 876, 885 (4th Cir. 1994)). Rule 403 provides a more limited bar to otherwise admissible evidence: 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. Fed. R. Evid. 403. 18 Rule 403 is likewise a rule of inclusion, generally favor[ing] admissibility . . . . United States v. Wells, 163 F.3d District 889, 896 (4th Cir. 1998). judges enjoy wide discretion to determine what evidence is admissible under the Rule. See United States v. Love, 134 F.3d 595, 603 (4th Cir. 1998). We review a district court s admission of evidence over a Rule 403 objection under a broadly deferential standard. (internal quotations omitted). Id. Indeed, [a] district court's decision to admit evidence over a Rule 403 objection will not be overturned except under the most extraordinary of circumstances, where that discretion has been plainly abused. v. Williams, 445 F.3d quotations omitted). construe the proponent, prejudicial effect. 732 (4th Cir. 2006) (internal In reviewing the admission of evidence, we evidence maximizing 724, United States in its the light probative most value favorable and to its minimizing its United States v. Simpson, 910 F.2d 154, 157 (4th Cir. 1990). 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 Rule 404(b) because it was intrinsic to the crime charged it was part of the same series of transactions as the offense and helped to tell the story of the crime. In addition, such testimony does not run afoul of Rule 403 because, 19 as intrinsic evidence, it was highly probative. The evidence that Simmons was seen with a gun immediately before a shooting occurred was damaging to Simmons s case, but that is not the standard under Rule 403 and such evidence was not unfairly affirm the district prejudicial. III. For the court's judgment. are denied. foregoing reasons, we Simmons s motions to file supplemental briefs 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 20
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