US v. Gabriel Mitchell, No. 13-4628 (4th Cir. 2014)

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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 13-4628 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. GABRIEL DANIEL MORRISON MITCHELL, a/k/a G, Defendant - Appellant. Appeal from the United States District Court for the Eastern District of Virginia, at Newport News. Mark S. Davis, District Judge. (4:12-cr-00010-MSD-LRL-2) Submitted: August 29, 2014 Decided: September 16, 2014 Before NIEMEYER, GREGORY, and AGEE, Circuit Judges. Affirmed by unpublished per curiam opinion. Randall D. York, for Howard J. Attorneys, Unger, LAW OFFICE OF RANDALL D. UNGER, Bayside, New Appellant. Dana J. Boente, United States Attorney, Zlotnick, Brian J. Samuels, Assistant United States Newport News, Virginia, for Appellee. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: A jury convicted Gabriel Daniel Morrison Mitchell of conspiracy to interfere with commerce by robbery, in violation of 18 U.S.C. robbery, in § 1951 (2012); violation of interference 18 U.S.C. § with 1951; commerce by carjacking, in violation of 18 U.S.C. § 2119 (2012); and possessing a firearm during a crime of violence, in violation of 18 U.S.C. § 924(c) (2012). months The district court sentenced Mitchell to a term of 260 imprisonment. On appeal, Mitchell asserts that the district court erred in admitting testimony in violation of Fed. R. Evid. defense 608(a); witness the Government about another improperly witness s cross-examined credibility; a the Government made improper remarks during closing argument; the district court erroneously refused to read back a portion of the testimony as requested by the jury; and the district court failed to ensure that Mitchell knowingly and voluntarily waived his right to testify. Finding no merit in Mitchell s arguments, we affirm. A. We review a district court s evidentiary rulings for abuse of discretion and arbitrary and irrational. 401 (4th Cir. 2012). will only overturn rulings that are United States v. Cloud, 680 F.3d 396, Further, evidentiary rulings are subject to harmless error review; an error is harmless when we can say 2 with fair assurance, after pondering all that happened without stripping the erroneous action from the whole, that the judgment was not substantially swayed by the error. United States v. Johnson, 617 F.3d 286, 292 (4th Cir. 2010) (internal quotation marks omitted). opinion testimony We conclude, based on the record, that any presented in violation of Rule 608(a) was harmless. B. In asserting error by the Government in its crossexamination of Mitchell s codefendant, Antonio McGhee, Mitchell acknowledges that our review is for plain error. standard of review, Fed. R. Crim. P. 52(b) Under this authorizes an appeals court to correct a forfeited error only if (1) there is an error, (2) the error is plain, and (3) the error affects substantial rights. 1121, 1126 omitted). (2013) Henderson v. United States, 133 S. Ct. (internal quotation marks and brackets Because Rule 52(b) is permissive, we will correct the error only if it seriously affects the fairness, integrity or public reputation of judicial proceedings. Id. at 1126-27 (internal quotations marks and brackets omitted). Appellate courts have held that it is inappropriate for counsel to ask one witness whether another witness is lying because [s]uch questions invade the province of the jury and force a witness to testify as to something he cannot know, i.e., 3 whether another tribunal. 2006) is intentionally seeking to mislead the United States v. Harris, 471 F.3d 507, 511 (3d Cir. (collecting cases). Here, the Government did not ask McGhee whether another witness was lying or otherwise force him to Rather testify than Government s to something seeking to questions about invade which the highlighted the he jury s fact determinations were for the jury to decide. conclude that Mitchell fails to could establish not know. province, that the credibility In any event, we plain error. See United States v. Beasley, 495 F.3d 142, 149 (4th Cir. 2007) (finding no plain error in absence of controlling precedent). C. Although we have held that error that is plain occurs when a prosecutor states that a defendant has lied under oath, see United States v. Woods, 710 F.3d 195, 203 (4th Cir.), cert. denied, 134 S. Ct. 312 (2013), we will reverse a conviction based on improper prosecutorial remarks only if the remarks were, in fact, improper, and . . . the improper remarks so prejudiced the defendant s substantial rights that the defendant was denied a fair trial. United States v. Chong Lam, 677 F.3d 190, 209 (4th Cir. 2012) (internal quotation marks omitted). assessing prejudice, we consider (1) the degree to which the prosecutor's remarks have a tendency to mislead the jury and to prejudice the accused; (2) whether the remarks were isolated or 4 In extensive; (3) absent the remarks, the strength of competent proof introduced to establish the guilt of the accused; (4) whether the comments were deliberately placed before the jury to divert attention to extraneous matters; (5) whether the prosecutor's remarks were invited by improper conduct of defense counsel; and (6) whether curative instructions were given to the jury. United States v. Wilson, 624 F.3d 640, 656 57 (4th Cir. 2010). These factors are to be viewed in the context of the trial as a whole, and no single factor is dispositive. United States v. Lighty, 616 F.3d 321, 361 (4th Cir. 2010). Our assessment of the record in light of the above factors leads us to conclude that Mitchell was not so prejudiced by the prosecutor s problematic remarks that he was denied a fair trial. D. Mitchell complains that the trial court refused the jury s request during deliberation to have the testimony of two witnesses read back to it. We review a district court s response to a jury request for abuse of discretion. United States v. Foster, 507 F.3d 233, 244 (4th Cir. 2007). Although the trial court has wide discretion to allow rereading of trial testimony, it is disfavored because the jury might accord that testimony undue emphasis. See United States v. Rodgers, 109 F.3d 1138, 1143-44 (6th Cir. 1997). Here, the district court denied for the jury s request precisely this reason, and conclude that the district court did not abuse its discretion. 5 we E. Finally, Mitchell argues that the district court failed to fully inquire into whether Mitchell s decision not to testify on his own behalf was a knowing and voluntary waiver of his right to do so. Because he failed to raise this issue below, our review is for plain error. at 1126-27 (providing standard). See Henderson, 133 S. Ct. We find no error, plain or otherwise, as there is no affirmative duty on a district court to obtain an testify. on-the-record waiver of a defendant s right to See United States v. McMeans, 927 F.2d 162, 163 (4th Cir. 1991); see also Sexton v. French, 163 F.3d 874, 882 (4th Cir. 1998) ( [T]rial counsel, not the court, has the primary responsibility for advising the defendant of his right to testify and for explaining the tactical implications of doing so or not. ). Based on the foregoing, we affirm the judgment of the district facts court. and materials legal before We dispense with oral argument contentions are adequately this and argument court because presented would not the in the aid the decisional process. AFFIRMED 6

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