United States of America v. Williams

Filing 920100927


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U n i t e d States Court of Appeals T e n t h Circuit FILED S e p t e m b e r 27, 2010 U N I T E D STATES COURT OF APPEALSl i s a b e t h A. Shumaker E F O R THE TENTH CIRCUIT C l e r k of Court U N I T E D STATES OF AMERICA, Plaintiff-Appellee, v. L I N D A L. WILLIAMS, Defendant-Appellant. N o . 09-1541 ( D . C . No. 1:06-CR-00374-WYD-1) ( D . Colo.) O R D E R AND JUDGMENT * B e f o r e TACHA, LUCERO, and MURPHY, Circuit Judges. L i n d a L. Williams appeals from the district court's order affirming her c o n v i c t i o n following a trial before a magistrate judge for damaging property of t h e National Forest Service. She argues that the testimony of a Forest Service p o l i c e officer identifying her as the person seen on a surveillance video d e s t r o y i n g a trailhead sign should not have been admitted at trial. We affirm. A f t e r examining the briefs and appellate record, this panel has determined u n a n i mo u s l y to grant the parties' request for a decision on the briefs without oral a r g u me n t . See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore o r d e r e d submitted without oral argument. This order and judgment is not binding p r e c e d e n t , except under the doctrines of law of the case, res judicata, and c o l l a t e r a l estoppel. It may be cited, however, for its persuasive value consistent w i t h Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. * BACKGROUND W i l l i a ms owns two unpatented mining claims comprising forty acres in the U n c o mp a h g r e National Forest in Ouray County, Colorado. 1 Over the course of s e v e r a l years, Williams and the Forest Service clashed over Williams's resistance t o inspections of her mining claims and her repeated attempts to block public a c c e s s to the area, a popular hiking destination, including placing a locked gate o n an access road and threatening to set "booby-trap[s]," ROA, Vol. 5 at 97. Williams also clashed with a private group that restores trails in the area, t h r e a t e n i n g a citizen's arrest of some of its members who were monitoring v a n d a l i s m to trailhead signs. Ultimately, Williams was arrested and charged in a t h i r t e e n - c o u n t complaint with a variety of offenses, including damaging a t r a i l h e a d sign. D u r i n g a jury trial conducted by a magistrate judge, Forest Service police o f f i c e r Jon Closson testified that he had interacted with Williams about six times o v e r the past three years. He indicated that in April 2004, he installed a " [ U ]n p a t e n t e d mining claims are subject to the right of the United States a n d its permittees and licensees to manage surface resources and `to use so much o f the surface thereof as may be necessary for such purposes or for access to a d j a c e n t land' so long as such does not `endanger or materially interfere with p r o s p e c t i n g , mining or processing operations or uses reasonably incident t h e r e t o . ' " Manning v. United States, 146 F.3d 808, 813-14 (10th Cir. 1998) ( q u o t i n g 30 U.S.C. 612(b)). 1 -2- s u r v e i l l a n c e camera to monitor a newly erected wooden sign at a trail near W i l l i a ms ' s mining claims. When he returned to the site several days later, he f o u n d the sign "smashed almost in half." Id. at 106. The video from the camera s h o w s an individual wearing a baseball cap, bulky coat, and backpack smashing t h e sign with a hammer and walking around the area. When the prosecutor asked O f f i c e r Closson if he recognized the person on the video, defense counsel o b j e c t e d , arguing that "[t]he videotape speaks for itself and [that identifying the p e r s o n is] a decision for the jurors to make." Id. at 109. The court overruled the o b j e c t i o n , allowing Officer Closson to testify that he recognized the person on the v i d e o as Williams based on her "style of walk," "the backpack," and her "short d a r k hair." Id. W i l l i a ms testified, denying that it was her image on the surveillance video s e e n destroying the trailhead sign. She insisted, however, that trail signs were " n o t supposed to be there," id., Vol. 6 at 239, 241, and she conceded that she had w r i t t e n letters demanding that the signs be removed, id. at 240, 241. T h e jury convicted Williams on seven counts, including damaging the t r a i l h e a d sign. She was sentenced to one year of supervised probation, with three mo n t h s of incarceration suspended provided she complied with the terms of her probation. W i l l i a ms appealed her conviction and sentence to the district court. U n s u c c e s s f u l , she now appeals to this court. -3- DISCUSSION A trial court's decision to admit evidence is reviewed for an abuse of d i s c r e t i o n . United States v. Contreras, 536 F.3d 1167, 1170 (10th Cir. 2008). T h u s , "we will not disturb an evidentiary ruling absent a distinct showing that it w a s based on a clearly erroneous finding of fact or an erroneous conclusion of l a w or manifests a clear error in judgment." Id. (quotation and brackets omitted). A lay witness's identification testimony is governed by Federal Rule of E v i d e n c e 701. See id. To be admissible, the testimony must be (1) rationally b a s e d on the witness's perception; (2) "`helpful to a clear understanding of the w i t n e s s ' s testimony or the determination of a fact in issue'"; and (3) not covered b y Rule 702. Contreras, 536 F.3d at 1170 (quoting Fed. R. Evid. 701). W i l l i a ms challenges only the second requirement, arguing that Officer C l o s s o n ' s testimony could not have been helpful to determining if she was the p e r s o n in the video. The helpfulness of identification testimony depends on w h e t h e r "there is some basis for concluding that the witness is more likely to c o r r e c t l y identify the defendant from the [video] than is the jury. The witness's p r i o r familiarity with the defendant's appearance is the most critical factor to d e t e r mi n e if such a basis exists." Id. (ellipsis, citations, and quotation omitted). O f f i c e r Closson's familiarity with Williams is based on six encounters with h e r over a three-year period. The First Circuit has noted that a witness's "contact w i t h [the defendant] on six occasions within a few months is within the zone that -4- c o u r t s have found acceptable to show that the witness was sufficiently familiar w i t h the defendant to provide a useful identification." United States v. Kornegay, 4 1 0 F.3d 89, 95 (1st Cir. 2005) (collecting cases). Although Officer Closson's f a mi l i a r i t y spans a period longer than a few months, the nature of his encounters w i t h Williams would have left a distinct mental impression. Specifically, at least t h r e e of the encounters involved Williams angrily confronting Officer Closson. For instance, when Officer Closson attempted to serve her with a notice that her mi n i n g claims failed to conform to Forest Service rules, Williams refused to a c c e p t the notice, and began kicking and stomping on the notice after he placed it o n her backpack on the ground. On another occasion, when Officer Closson was i n v e s t i g a t i n g complaints that the public was being excluded from the area of W i l l i a ms ' s claims, Williams approached him angrily and insisted that he was on h e r private property; she temporarily relented and accompanied him as they w a l k e d around the mining claims, and eventually engaged him in a lengthy c o n v e r s a t i o n about the property's ownership. On yet another occasion, when O f f i c e r Closson was speaking with two people on an access road, Williams a n g r i l y intervened, repeatedly insisting he was on private property and could not t a l k to the people. M o r e o v e r , this court has approved a witness's familiarity on fewer e n c o u n t e r s than present here. In United States v. Bush, 405 F.3d 909, 917 ( 1 0 t h Cir. 2005), we concluded that a detective's identification of the voice on an -5- a u d i o t a p e as belonging to the defendant was helpful to the jury because the d e t e c t i v e had spoken to the defendant "in person on three occasions." We also n o t e d in Bush that "[c]ourts have . . . preferred to leave to juries any assessment o f the weight to be given to [identification] testimony when there exist questions r e g a r d i n g the quantity or quality of perception." Id. at 916. Likewise, in the c o n t e x t of Officer Closson's familiarity with Williams's appearance, the jury was f r e e to assess the weight of his identification testimony based on the number of e n c o u n t e r s and the time period involved. A d d i t i o n a l l y , Officer Closson's testimony would have been helpful because t h e video footage is partially obscured by plants and does not provide a close-up v i e w of the perpetrator's face. The "clarity of the surveillance [video] and the q u a l i t y and completeness with which the subject is depicted in the [video]" are i mp o r t a n t factors bearing on the admissibility of lay opinion testimony. United S t a t e s v. Dixon, 413 F.3d 540, 545 (6th Cir. 2005). Also important is "whether t h e defendant had disguised his appearance at the time of the offense." Id.; see a l s o United States v. Towns, 913 F.2d 434, 445 (7th Cir. 1990) (concluding that l a y - w i t n e s s identification testimony would have been helpful to the jury because " t h e robber depicted in the photograph was wearing a stocking cap, sunglasses, a n d a sweatsuit that potentially made him appear heavier than he really was"). Here, the identity of the person on the video is obscured by a baseball cap and b u l k y coat with the collar turned up. -6- B e c a u s e Officer Closson had a variety of encounters with Williams, i n c l u d i n g ones in which he observed her backpack and her walking in the forest, h e would have had an advantage over the jury in identifying her as the p e r p e t r a t o r , especially considering the less-than-perfect video footage and the p e r s o n ' s hidden appearance. Thus, Officer Closson's testimony would have been h e l p f u l to the jury in identifying the person shown on the surveillance video. Accordingly, the magistrate judge did not abuse her discretion in admitting O f f i c e r Closson's testimony. 2 W i l l i a ms also contends that even if Officer Closson's testimony was a d mi s s i b l e under Rule 701, the magistrate judge abused her discretion in a d mi t t i n g the testimony because, under Rule 403, its probative value was s u b s t a n t i a l l y outweighed by the danger of unfair prejudice. Specifically, she q u e s t i o n s the practice of allowing police officers to give identification testimony a n d notes that there were other witnesses the prosecution could have called to i d e n t i f y the person on the video. She rightly concedes, however, that there is no p e r se bar to law-enforcement officers providing lay-witness identification t e s t i mo n y . Cf. Contreras, 536 F.3d at 1171-72 (rejecting defendant's argument t h a t probation officer's identification testimony was unfairly prejudicial). Further, Officer Closson set up the surveillance video camera and was familiar w i t h Williams's appearance; thus, he was a logical person to testify about the v i d e o and the person seen destroying the sign. The magistrate judge did not a b u s e her "considerable discretion in performing the Rule 403 balancing test." United States v. Smalls, 605 F.3d 765, 787 (10th Cir. 2010) (quotation omitted). -7- 2 CONCLUSION T h e judgment of the district court is AFFIRMED. E n t e r e d for the Court M i c h a e l R. Murphy C i r c u i t Judge -8-

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