US v. Roosevelt Simmons

Filing 920100527

UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT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Affirmed by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.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 residue a test (GSR while test), admitting the evidence that and

Simmons

used

firearm

possessing

ammunition,

enhancing his sentence.

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. at a high rate of 2 speed, Simmons pulled up

Proceeding

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 someone must have known about the burglary on

November 4.

Sarah Ruthers and her boyfriend Richard Gooch were Both noticed Simmons's car as it Both his recognized voice in Simmons the as he

in apartment 322 at the time. entered exited the the lot car and and parked.

recognized

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 Conley told Simmons that

recognize, standing in the hallway.

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. Conley was not a resident of the Eagle Court Apartments but was staying with friends in the complex at the time. 3
1

Gooch

began

watching

the

events

unfold

through

the

peephole in Ruthers's apartment.

Gooch heard Simmons verbally

abusing Conley and also saw a man he did not recognize standing further down the hallway. saw Simmons pull a After Conley slammed the door, Gooch from a brown paper bag he was

handgun

holding.

Gooch told Ruthers to call 911 and retreated back into Moments later the residents heard gunfire and Gooch heard four fifth shot seconds

the apartment.

the sound of breaking dishware and glass. shots later. Ruthers. in quick succession followed by a

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 into the parking lot prior to the shots being

fired.

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 description spotted provided and by stopped Gooch and a vehicle Ruthers. matching 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 conducted to a the Bellaire Police Simmons was where on

Department, (GSR

officers

gun-shot

residue

test

test)

Simmons's hands.

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 Bellaire, Ohio, is located directly across the Ohio River from Wheeling, West Virginia. 5
2

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 the bullets shattered the

dishware in Ruthers's apartment. firearm used in the shooting. Based upon the

Officers never recovered 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 and jail phone recordings between

Simmons and Speights. Speights that he had

In these conversations, Simmons informed hidden the gun in a laundry box in

Speights's apartment and arranged for his sister to remove the gun. Simmons to the also suggested how In Speights addition, should a make her

statements approached

investigators. Government with

prison

inmate had

information

that

Simmons

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. August 26 to August 28, 2008. court conducted a jury view of A jury trial was conducted from During the trial, the district 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 The district court conducted a sentencing

possession charge.

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 error in conducting a jury view of the

Court

Apartments, the

permitting to

Gooch's the

identification GSR test, and

testimony,

denying

motion

suppress

admitting evidence of the shooting. 3 in turn.

We address each contention

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

3

A. Simmons committed first contends in that the a district jury view court of the

reversible

error

conducting

Eagle Court Apartments during the trial.

"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 of the trial court."

discretion

United States v. Passos-Paternina, 918 F.2d 979, 986 (1st Cir. 1990) (citations omitted). 197 F.3d 900, 905 (7th See also United States v. Woolfolk, 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 Court Apartments and included a

proposed list of sites.

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 Before entering the the district court,

van with U.S. Marshals during the view. apartments, Agent Sirbaugh suggested to

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 to that list view of The because sites, jurors and it was not Simmons's on the court and

Government's sustained the

pretrial

the

district the

objection.

completed

view

returned to court. On appeal, Simmons does not contest the conducting of a jury view, but rather the argues jury that, was into given Special Agent from a

Sirbaugh's permissible opportunity

comments, crime for

view

transformed an

scene Agent

inspection Sirbaugh to

unconstitutional outside of the

testify

Defendant's presence.

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 not in the believe this view case. resolves either The any situation presence constituted of Simmons's issues See

error

during

constitutional

arising from Simmons's inability to take part in the view.

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, and unsupervised, are subject to harmless

court-ordered

error review.

See Arnold v. Evatt, 113 F.3d 1352, 1361 (4th

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 jury view of crime scene subject to

harmless error review).

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 fit into the

context of the evidence presented at trial." at 1138. reduced,

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." reviewing pondering Arnold, 113 F.3d at 1361. court all is that able to happened `say, An error is harmless "if a with fair assurance, the after

without

stripping

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 that heard gunshots. gunfire Conley almost and Gooch both after

testified

they

heard

immediately

Simmons drew the gun.

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 Given this

he watched Simmons hide the gun in Speight's home.

wealth of testimony, it is difficult to see how Agent Sirbaugh's suggestion suggests regarding apartments, or Simmons's he would exclusion have to the were for prejudicial. different lot so Simmons views the the

that the

asked see

site from

ability he had

the

parking to do

but

opportunity

during

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 U.S. if 377, 384 (1968)). No was due process

violation reliable

occurs to

the

"identification the substantial

sufficiently of

preclude

likelihood

misidentification."

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 out-of-court photo identification any is

and

therefore

inadmissible,

in-court

identification is also inadmissible. 84. On appeal, we may assume

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

judge

denied after

Simmons's a

motion and

to the

identification

testimony

hearing,

district court adopted that recommendation. assumed that the photo identification

The district court 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 was was impermissibly and thus suggestive, Gooch's We have

identification

reliable

admissible.

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." quotation marks and alterations omitted). Applying reliable. these factors, Gooch's identification was Id. (internal

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 Gooch had a good exit In from the two the

was made one half-hour after the shooting. opportunity apartment other to view and Simmons's recognized and approach his car. placed and

complex

addition, in

witnesses,

Ruthers

Sealey,

Simmons

apartment building.

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 Bellaire motion to his asserts to that the the district GSR court erred at in the of a

motion

suppress In we

test the

taken

Police

Department. evidence,

addressing review the

denial

suppress

district

court's

findings of historical fact for clear error, "giving due weight to inferences drawn from those facts by resident judges and

local law enforcement officers." U.S. 690, 699 (1996).

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." 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 United States v. Perkins, 363

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-

delineated exceptions."

United States v. Bush, 404 F.3d 263,

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 States v. Currence, 446 F.3d 554, 556 (4th Cir.

2006).

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 Another such

(1969)).

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." Cir. 2001).

United States v. Cephas, 254 F.3d 488, 494-95 (4th

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. As the court

Johnson, 445 F.3d 793, 795-96 (5th Cir. 2006).

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 Such a result is dictated by Cupp v. Murphy, 412 in which with the Supreme Fourth Court concluded could that take

(1973), consistent

police,

the

Amendment,

fingernail samples incident to a lawful arrest.

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 in Id. this case was

Simmons does not contest the lawfulness of his that concession, the GSR test, a "very

given

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. 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. Cir. 2007). United States v. Delfino, 510 F.3d 468, 470 (4th We will not "`vacate a conviction unless we find The district court did not err in denying the

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 of Fed.

The Rule 404(b) inquiry, however, applies only other acts that are "extrinsic to the one

charged." 1996).

United States v. Chin, 83 F.3d 83, 87 (4th Cir.

"[A]cts intrinsic to the alleged crime do not fall under Id. at 87crimes'

Rule 404(b)'s limitations on admissible evidence." 88. "Evidence of uncharged conduct is not

`other

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 . . . ." F.3d 889, 896 (4th Cir. 1998). United States v. Wells, 163 District judges enjoy wide

discretion to determine what evidence is admissible under the Rule. 1998). See United States v. Love, 134 F.3d 595, 603 (4th Cir. We "review a district court's admission of evidence over Id.

a Rule 403 objection under a broadly deferential standard." (internal quotations omitted).

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 724, 732 (4th Cir. United States 2006) (internal

quotations omitted). construe the

In reviewing the admission of evidence, we in its the "light most favorable and to its its

evidence

proponent,

maximizing

probative

value

minimizing

prejudicial effect." 157 (4th Cir. 1990). Applying

United States v. Simpson, 910 F.2d 154,

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

prejudicial.

III. For the foregoing reasons, we affirm the district

court's judgment. are denied.

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