US v. Lamont Harri

Filing

UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 2:11-cr-00240-1 Copies to all parties and the district court/agency. [999074364].. [12-4684]

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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 12-4684

UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
LAMONT VAN HARRIS,
Defendant - Appellant.

Appeal from the United States District Court for the Southern
District of West Virginia, at Charleston.
Thomas E. Johnston,
District Judge. (2:11-cr-00240-1)

Submitted:

February 28, 2013

Decided:

March 28, 2013

Before MOTZ, WYNN, and DIAZ, Circuit Judges.

Affirmed by unpublished per curiam opinion.

L. Thompson Price, HOLROYD & YOST, Charleston, West Virginia,
for Appellant.
R. Booth Goodwin II, United States Attorney,
Joshua C. Hanks, Assistant United States Attorney, Charleston,
West Virginia, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
Lamont Van Harris appeals from his conviction after a
jury trial for being a felon in possession of a firearm, in
violation

of

18

U.S.C.

§ 922(g)(1)

(2006).

The

Government

presented evidence that the Defendant shot Travis Bush with a
9mm handgun.

On appeal, the Defendant argues that the district

court erred in denying his motion to exclude the identification
of him by the victim, that there was insufficient evidence to
support his conviction, and that the district court erred in
denying his motion for a new trial based on juror bias.

Finding

no error, we affirm.
The Defendant appeals the district court’s denial of
his

motion

in

limine

to

suppress

Travis

Bush’s

pre-trial

identification of him as the man who shot him on September 17,
2011, and preclude him from identifying the Defendant in court.
He argues that the photo array used by police six days after the
shooting

was

saw

same

the

impermissibly
photograph

suggestive
used

in

because

the

photo

Bush
array

admittedly
on

local

television news coverage of the incident, which also indicated
that

the

Defendant

had

been

arrested

for

the

crime.

The

Defendant’s argument on appeal is conclusory and states only
that

the

use

suggestive
substantial

and

of

the

that

likelihood

photo
the
of

in

the

array

identification

was

impermissibly

procedure

created

misidentification.
2

He

also

a

flatly

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asserts

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that

Bush’s

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pre-trial

identification

was

not

sufficiently reliable to permit an in-court identification.
This

court

reviews

de

novo

a

district

admission of an eyewitness identification.
Saunders,

501

F.3d

384,

389

(4th

Cir.

court’s

United States v.

2007).

“Due

process

principles prohibit the admission at trial of an out-of-court
identification

obtained

through

procedures

‘so

impermissibly

suggestive as to give rise to a very substantial likelihood of
irreparable misidentification.’”

Id. (quoting Simmons v. United

States, 390 U.S. 377, 384 (1968)).

No due process violation

occurs

sufficiently

if

preclude

the
the

“identification
substantial

was

likelihood

of

reliable

to

misidentification.”

United States v. Johnson, 114 F.3d 435, 442 (4th Cir. 1997).
The defendant bears the burden of proof in challenging
the admissibility of an out-of-court identification.
441.

First, the defendant must show that the identification

procedure was impermissibly suggestive.
389.

See id. at

Saunders, 501 F.3d at

If the defendant is successful, the court must consider

“whether

the

identification

was

nevertheless

context of all of the circumstances.”

reliable

in

Id. at 389-90.

the
If a

witness’s out-of-court photo identification is unreliable and,
therefore,

inadmissible,

inadmissible.

any

in-court

identification

Simmons, 390 U.S. at 383-84.

3

is

also

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On appeal, this court may uphold a district court’s
denial of a motion to suppress an out-of-court identification,
if

it

finds

whether

the

Holdren

v.

the

assessing

identification

identification
Legursky,

the

16

procedure

F.3d

reliability

reliable,

of

57,
an

without

determining

unduly

suggestive.

was

61

(4th

Cir.

out-of-court

1994).

In

identification,

this court examines:
(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; (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.
Considering these five factors, the totality of the
circumstances
identified

renders

his

shooter

the

identification

within

an

hour

of

reliable.
the

Bush

shooting.

He

observed the Defendant at the time he was shot holding a pistol
and saw him outside the West Dunbar Mart, where he was shot,
just

prior

to

the

incident.

Bush

Defendant from prior incidents.
Defendant’s

physical

specific

individual

characteristics

and

familiar

with

the

Bush was able to describe the

Defendant’s first name and address.
a

was

not

a

and

provided

the

His description pointed to
group

of

possible

suspects.

When reviewing the photos in the array, Bush stated that he
casually recognized two men in the photo array but identified
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the Defendant’s photo as “the guy that shot me right there.”
The

six

days

that

identification
reliability.
factors

elapsed

was

not

between

sufficiently

the

shooting

lengthy

to

and

Bush’s

undermine

its

As the district court noted, there were also other

supporting

the

reliability

of

Bush’s

identification.

Another eyewitness identified the Defendant, Bush knew facts not
released

to

the

media,

and

police

found

and

arrested

the

Defendant at the address that Bush provided.

In consideration

of

did

these

facts,

we

conclude

that

the

court

not

err

in

denying the motion to suppress the out-of-court identification
and in permitting an in-court identification.
We

also

discern

no

error

in

the

district

court’s

decision to deny the Defendant’s Fed. R. Crim. P. 29 motion
based

on

the

sufficiency

Defendant

argues

Defendant

shot

possession

of

that
Bush

a

of

the

evidence

Government

because

firearm

the

the

only

introduced

casings found at the scene.

had

at

against
to

prove

physical
trial

him.

was

The

that

evidence
five

the
of

shell

The Defendant cites witness Jessica

Boyce’s testimony that she recognized the Defendant as being a
customer of the West Dunbar Mart, but that she did not see him
at the store that day and only caught a glimpse of the shooter.
The Defendant also questions the veracity of Bush’s testimony
identifying the Defendant as the shooter because they were not
known to socialize together, Bush did not know the Defendant’s
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last name until after the shooting, and there was no motive to
shoot Bush in the daylight in a public place.
We review the denial of a Rule 29 motion de novo.

See

United States v. Alerre, 430 F.3d 681, 693 (4th Cir. 2005).
When a Rule 29 motion was based on a claim of insufficient
evidence,

the

substantial

jury’s

verdict

must

evidence,

taking

the

Government, to support it.”

be
view

sustained
most

“if

there

favorable

to

is
the

United States v. Abu Ali, 528 F.3d

210, 244 (4th Cir. 2008) (internal quotation marks and citations
omitted).

Substantial evidence is “evidence that a reasonable

finder

fact

of

could

accept

as

adequate

and

sufficient

to

support a conclusion of a defendant’s guilt beyond a reasonable
doubt.”

United States v. King, 628 F.3d 693, 700 (4th Cir.

2011) (internal quotation marks omitted).
In resolving issues of substantial evidence, the court
does

not

reweigh

the

evidence

or

reassess

the

factfinder’s

determination of witness credibility, and it must assume that
the jury resolved all contradictions in testimony in favor of
the Government.

See United States v. Roe, 606 F.3d 180, 186

(4th Cir. 2010).

Thus, a defendant challenging the sufficiency

of the evidence faces a heavy burden.

See United States v.

Beidler, 110 F.3d 1064, 1067 (4th Cir. 1997).

We conclude that

the

to

Government

produced

sufficient

evidence

support

the

jury’s conviction for being a felon in possession of a firearm.
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The Defendant stipulated that he had been convicted of a felony.
Uncontradicted
established

testimony

an

of

interstate

ATF

Special

nexus.

Agent

Lastly,

Todd
two

Willard
witnesses

testified that the Defendant possessed a firearm at the time he
shot Bush.
Finally,

the

Defendant

contends

that

the

district

court erred in denying his motion for a new trial under Fed. R.
Crim. P. 33 based on juror bias.
Doreen

Motley,

number

11

testified

stated

that

at

she

The Defendant’s girlfriend,

trial.
was

During

familiar

voir

with

dire,

juror

Motley’s

aunt.

After trial, the Defendant submitted an affidavit from Motley.
In the affidavit, Motley averred that her aunt “was not fond of”
the

Defendant,

her

aunt

had

knowledge

of

the

Defendant’s

criminal history, and her aunt was a friend of juror number 11.
The Defendant argues that juror number 11’s failure to fully
disclose her acquaintance with Motley’s aunt and the juror’s
potential knowledge of the aunt’s impression that she did not
like the Defendant and that the Defendant had a criminal record
deprived him of his right to a fair and impartial jury under the
Sixth

Amendment.

He

concedes

that

there

is

no

information

whether the aunt’s dislike of the Defendant was known to juror
number 11 or whether the juror knew of the Defendant’s criminal
record through the juror’s association with the aunt.

However,

he claims the acquaintance of the juror with the Defendant is
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presumptively prejudicial and violates the right to an impartial
jury.
The Government contends that the district court did
not

err

in

finding

that

Motley’s

affidavit

enumerating

her

aunt’s knowledge of the Defendant was ambiguous and insufficient
to establish that the interests of justice required a new trial.
Balancing the ambiguity of what juror number 11 actually knew
with her answer to the court’s inquiry of whether she would be
able to decide the case solely on the facts and the law and her
forthrightness

in

acknowledging

the

association

with

Motley’s

aunt at voir dire, the Government argues that the record is
insufficient to demonstrate that the court erred in denying the
motion for a new trial.
The Sixth Amendment guarantees the right to a “trial[]
by an impartial jury.”

U.S. Const. amend. VI.

“The right to

trial by an impartial jury ‘guarantees . . . a fair trial by a
panel of impartial, indifferent jurors.’”

Robinson v. Polk, 438

F.3d 350, 359 (4th Cir. 2006) (quoting Irvin v. Dowd, 366 U.S.
717, 722 (1961)).
The
begins

with

analysis
the

of

Supreme

the

Defendant’s

Court’s

holding

juror
in

bias

claim

McDonough

Power

Equip., Inc. v. Greenwood, 464 U.S. 548 (1984), “that to obtain
a

new

trial

[on

a

juror

bias

claim],

a

party

must

first

demonstrate that a juror failed to answer honestly a material
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question on voir dire, and then further show that a correct
response would have provided a valid basis for a challenge for
cause.”
Cir.

Id. at 556; Jones v. Cooper, 311 F.3d 306, 310 (4th

2002)

standard

to

(recognizing
federal

the

applicability

criminal

of

proceedings).

the
We

McDonough

believe

the

district court properly found that juror number 11 forthrightly
answered the question during voir dire that she knew Motley’s
aunt

and

that

the

Defendant,

therefore,

was

not

entitled

to

relief under McDonough.
We have held, however, that a defendant’s “[f]ailure
to

satisfy

the

requirements

of

McDonough

does

not

end

the

court’s inquiry . . . when the petitioner also asserts a general
Sixth

Amendment

claim

challenging

the

partiality

of

a

juror

based upon additional circumstances occurring outside the voir
dire.”
1998).

Fitzgerald v. Greene, 150 F.3d 357, 362-63 (4th Cir.
A defendant

evidentiary hearing.
opportunity

to

circumstances,

is

not

entitled

to

an

However, post-trial, the movant has the

demonstrate
that

automatically

the

actual

facts

are

bias,
such

inferred, in order to grant a new trial.

or
that

in
bias

exceptional
is

to

be

Id. at 363 (quoting

McDonough, 464 U.S. at 556-57).
We agree with the district court.

The Defendant’s

motion for a new trial argues that juror number 11 may have
known that Motley’s aunt did not like the Defendant and may have
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known of the Defendant’s criminal history and therefore may have
held a bias against the Defendant.
conjectural,
otherwise.

and

the

Defendant

This depiction is purely

proffered

nothing

to

suggest

Motley’s affidavit does not demonstrate what juror

number 11 knew, but alleged what she may have known.

Given the

speculative nature of the Defendant’s allegations, we conclude
that the district court did not err in denying the motion for a
new trial.
We therefore affirm the judgment.
oral

argument

adequately

because

presented

in

the
the

facts

and

materials

We dispense with

legal
before

contentions
the

court

are
and

argument would not aid the decisional process.

AFFIRMED

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