United States v. Mandingo Simm

Filing

OPINION FILED - THE COURT: James B. Loken, Pasco M. Bowman and Kermit E. Bye AUTHORING JUDGE:James B. Loken (PUBLISHED), DISSENT BY: Kermit E. Bye [4162925] [13-2595]

United States Court of Appeals
For the Eighth Circuit
___________________________
No. 13-2595
___________________________
United States of America
lllllllllllllllllllll Plaintiff - Appellee
v.
Mandingo Simms
lllllllllllllllllllll Defendant - Appellant
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Appeal from United States District Court
for the Western District of Arkansas - Ft. Smith
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Submitted: February 10, 2014
Filed: June 10, 2014
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Before LOKEN, BOWMAN, and BYE, Circuit Judges.
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LOKEN, Circuit Judge.
Mandingo Simms appeals the district court’s1 revocation of supervised release.
He argues that the court violated his due process right to confront witnesses when it
admitted hearsay evidence at the revocation hearing without engaging in the analysis
1

The Honorable Robert T. Dawson, United States District Judge for the
Western District of Arkansas.

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required by United States v. Bell, 785 F.2d 640, 642-43 (8th Cir. 1986), and later
decisions. See also Fed. R. Crim. P. 32.1(b)(2)(C). We review this constitutional
claim de novo. See United States v. Farmer, 567 F.3d 343, 347 (8th Cir. 2009).
Concluding the Bell issue was not properly preserved in the district court, we affirm.
I.
Simms began a five-year term of supervised release in September 2009 after
serving a prison sentence for conspiring to distribute cocaine base. In October 2010,
he was convicted of misdemeanor third degree domestic battery in an Arkansas state
court. Jurisdiction over his supervised release was then transferred to the Western
District of Arkansas. On August 22, 2012, Simms’s estranged wife, Nikki Simms,
complained to Van Buren, Arkansas police that Simms had battered, sexually
assaulted, and threatened to kill her for many hours the prior night. Nikki Simms was
referred to the Women’s Crisis Intervention Center in Fort Smith, where her physical
injuries were identified. The next day, she applied for an ex parte Order of Protection
against Simms, which the Crawford County Circuit Court issued after a September
19 hearing. Criminal charges were filed in state court on September 10.
Based on this incident, U.S. Probation Officer Brent Young petitioned the
district court for revocation of Simms’s supervised release, charging him with
violating the condition that he not commit another crime. The Petition alleged that
Van Buren police had charged Simms “with aggravated assault of a family or
household member, terroristic threatening, domestic battery 3rd degree, and criminal
mischief 1st degree.” The Petition gave a detailed summary of the incident as
reported by Nikki in the police “incident report.” The Petition also “noted” the 2010
state court conviction, for which no action had been requested “due to the
circumstances of the charge.”

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The court held a revocation hearing on July 11, 2013. The government’s
evidence consisted of testimony by Probation Officer Young and Van Buren
Detective Randall Allen; the Transcript of Judgment for Simms’s 2010 conviction;
police incident reports relating to the 2010 and 2012 incidents; photos of Ms.
Simms’s injuries; photos of the broken bed frame where Nikki alleged Simms
forcefully threw her during the sexual assault; photos of text messages Simms sent
to Nikki on August 23, 2012, admitting that he made “a big mistake” and asking her
to forgive him; and Arkansas State Crime Lab reports that Simms’s DNA was present
in material collected during a sexual assault exam of Nikki Simms shortly after the
incident. During cross examination of Detective Allen, defense counsel introduced
the ex parte Order of Protection and an August 22 Crisis Intervention Center report
that included a lengthy hand-written narrative of the incident by Nikki Simms.
Despite the obvious issues raised by this array of evidence, only one hearsay
or confrontation objection was made at the hearing. After the government introduced
the 2010 Judgment without objection, Probation Officer Young was asked:
Q. . . . What actually happened?
A. According to the police report or the incident report, there was
an altercation between Mr. Simms and Brenda McCullough, and the -[Defense Counsel]: Your honor . . . I’m going to object. It
violates the confrontation clause for the probation officer to read in the
report. I think that he can testify about the outcome, but as far as the
reading in the facts and circumstances, I think [Simms] has an absolute
right to confront the witness.
THE COURT: Well, this is a supervised release issue. . . . The
rules are a little different. . . . I’m going to overrule your objection with
a continuing objection and exception to it, but I would point out, too, to
the government and the witness, that I can read . . . .

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Officer Young then briefly summarized the 2010 incident and then described the
August 2012 incident giving rise to the petition to revoke supervised release. At the
end of direct examination, the court asked Officer Young:
THE COURT: Was there a report issued in connection with the
August 2012 incident?
A. Yes, sir. There was a police report.
THE COURT: And do you have it?
A. I do. Yes, sir.
THE COURT: Any objection to making that . . . Government’s
Exhibit No. 2 in this matter?
[Defense Counsel]: Your Honor, the officer is here. If . . . the
Court’s inclined to conditionally admit that based on the officer’s
testimony . . . .
THE COURT: I’m going to admit it. If he’s here, he can affirm
it, but it will be admitted with that understanding. . . .
Detective Allen, an author of the 2012 incident report, then testified. Allen recounted
at length, without objection, what Nikki Simms told him immediately after the August
2012 incident, as well as his investigative conversations with Simms and his personal
observations during the investigation. Defense counsel’s extensive cross examination
focused primarily on the question whether the sexual contact by Simms during this
violent encounter with his wife was consensual. To that end, counsel introduced the
Crisis Center Report, which included medical evidence consistent with consensual
sex and also Nikki Simms’s lengthy, handwritten narrative of the incident, which was
consistent with Detective Allen’s testimony of what she told him during his
investigation.
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Based on this evidence, the district court revoked Simms’s supervised release.
The court found that Simms had committed a violent Class A offense, whether or not
he raped Nikki Simms. The court calculated a guidelines sentencing range of 24 to
30 months in prison, see U.S.S.G. §§ 7B1.1(a)(1), 7B1.4(a); varied upward; and
imposed the statutory maximum 60 months, concurrent with any sentence imposed
in the pending state court prosecution, with no further supervised release.
II.
On appeal, Simms argues the district court violated his constitutional right to
confront adverse witnesses at a supervised release revocation hearing when it
considered “police and other reports along with testimony regarding the hearsay
contents of those documents.” The “full panoply of rights due a defendant in [a
criminal prosecution]” do not apply in revocation proceedings, but a defendant
contesting revocation is entitled to “the minimum requirements of due process,”
including “the right to confront and cross-examine adverse witnesses (unless the
hearing officer specifically finds good cause for not allowing confrontation).”
Morrissey v. Brewer, 408 U.S. 471, 480, 489 (1972). Thus, as the district court
recognized, “[t]he standard for admitting hearsay in a revocation hearing is different
than at [a] trial on the merits.” Farmer, 567 F.3d at 347 (quotation omitted).
Because the rules of evidence regarding hearsay are complex and do not strictly
apply in revocation proceedings, Simms’s overly-broad contention requires that we
separately consider each item of evidence that raises a hearsay issue. We begin with
the only item to which specific objection was made, the police report relating to
Simms’s 2010 battery conviction. Early in the revocation hearing, defense counsel
objected that “it violates the confrontation clause for the parole officer [Brent Young]
to read in the report.” This was an ambiguous objection. As stated, counsel merely
objected to Young reading into the record a report that he did not author when he had
no first-hand knowledge of the underlying facts. But counsel may have intended to
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also object to admission of a report containing hearsay statements by the victim of
Simms’s 2010 offense. The distinction is clearly significant. See United States v.
Johnson, 710 F.3d 784, 789 (8th Cir. 2013), where the revocation sentence was
vacated because the government offered no evidence other than a police report; we
distinguished our affirmance in Farmer, where the authors of the police report were
subject to cross examination, 567 F.3d at 346-47. Here, the district court was too
quick to admit the 2010 report without evidence of its reliability. See Bell, 785 F.2d
at 643-44; United States v. Lloyd, 566 F.3d 341, 346 (3d Cir. 2009). But this error
was clearly harmless, both because the battery conviction was admitted into evidence,
and because the court stated that its 60-month sentence was based “especially” on the
violent 2012 incident.
The next item of evidence was the 2012 police report. During his direct
examination, Probation Officer Young described this report as containing the facts
that prompted him to file revocation charges. No impermissible hearsay in that.
When the court asked if there was any objection to admitting the report into evidence,
defense counsel noted that its author was present so the court could “conditionally
admit that based on the officer’s testimony.” The court immediately admitted the
report unconditionally, again perhaps too quickly. But the contents of the report were
quickly overshadowed by Detective Allen’s direct testimony, photos evidencing
Simms’s violent assault, and the Crisis Intervention Center report.
That brings us to the crux of Simms’s appeal, Allen’s lengthy testimony as to
what Nikki Simms told him the day after the 2012 incident. Simms did not object to
this testimony, which was consistent with Nikki’s hand-written narrative of the
incident in the Crisis Center report, a document offered into evidence by Simms
during cross examination of Detective Allen. This is the type of victim hearsay at
issue in United States v. Black Bear, 542 F.3d 249, 252 (8th Cir. 2008). It is
obviously highly relevant to the revocation charges and may greatly affect the
revocation sentence imposed if one or more violations are found. Thus, when timely
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objection is made, as it was in Bell, see 785 F.2d at 643 n.3, the district court must
assess “the explanation the government offers of why confrontation is undesirable or
impractical” and “the reliability of the evidence which the government offers in place
of live testimony” before deciding whether “the probationer is entitled to
confrontation.” Id. at 643; see United States v. Martin, 371 F.3d 446, 448-49 (8th
Cir.), cert. denied, 543 U.S. 1004 (2004).
Simms argues that the revocation judgment must be vacated because the
government offered no explanation why Nikki Simms was not present to give live
testimony, and the district court failed to conduct the analysis required by Bell, Black
Bear, Johnson, and other cases. But defense counsel never objected to the admission
of Nikki’s out-of-court statements, unlike the defendant in United States v. Reynolds,
who objected to admission of victims’ out-of-court complaints of sexual assault. 49
F.3d 423, 425 (8th Cir. 1995).
There are likely explanations for Simms’s failure to object. First, many cases
have held that there is good cause for not producing a declarant “when a defendant
has a history of violent conduct that makes reprisal . . . a possibility.” United States
v. Carthen, 681 F.3d 94, 101 (2d Cir. 2012) (quotation omitted), cert. denied, 133 S.
Ct. 837 (2013). Here, Nikki Simms told police she was frightened of Simms after the
2012 incident, and a state court promptly entered a five-year protective order at her
request. Second, given the substantial non-hearsay evidence that Simms was guilty
of a violent assault, defense counsel’s emphasis at the hearing was to avoid a finding
of non-consensual sex (which was avoided); Nikki Simms, if present, would
undoubtedly testify she was raped during the 2012 incident, whereas Simms argued
her out-of-court statements were unclear on this issue, and the Crisis Center report
included medical evidence consistent with Simms’s claim of consensual sex.
In these circumstances, the government was not obligated to explain the
absence of Nikki Simms until the issue was raised, and the district court was not
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obligated to apply the Bell balancing test, sua sponte, in the absence of a hearsay or
confrontation objection requiring that analysis.2 Moreover, on this record, had Simms
made a timely objection to Nikki’s out-of-court statements, and the district court
failed to conduct a Bell analysis, we would perform the analysis ourselves and
conclude there was good cause not to produce her as a live witness, as we did in
Farmer, 567 F.3d at 347-48, and in United States v. Martin, 382 F.3d 840, 846 (8th
Cir. 2004). We also conclude that substantial non-hearsay evidence of a violent
assault, including Simms’s admissions in his text messages to Nikki Simms after the
incident, supported the court’s decision to revoke supervised release and impose a 60month sentence. Thus, any error in failing to conduct the Bell balancing analysis was
harmless, as in Black Bear, 542 F.3d at 255-56.
Simms argues that the court’s offer of “a continuing objection” when it ruled
on his objection to the 2010 police report preserved all conceivable confrontation
objections to any hearsay evidence offered at any subsequent point in the hearing.
This contention is without merit. “A party may not rely on a continuing objection
lodged on one evidentiary ground to argue a different ground for exclusion on
appeal.” United States v. McVeigh, 153 F.3d 1166, 1201 (10th Cir. 1998), cert.
denied, 526 U.S. 1007 (1999); see United States v. Davis, 534 F.3d 903, 914-15 (8th
Cir. 2008), cert. denied, 555 U.S. 1201 (2009). An objection that a non-author may
not read a police report into evidence did not preserve the question whether Simms
had a due process right to confront his victim, Nikki Simms. “Preserving an issue is
a matter of . . . clearly stating the grounds for the objection, so that the trial court has
an opportunity to prevent or correct the error in the first instance.” United States v.
2

This is not a case like Johnson, 710 F.3d at 786, where the government was
unprepared to present a properly-supported case for revocation of supervised release.
Given the substantial evidence brought to the hearing and introduced, it is proper to
assume the government was prepared to respond to a hearsay or confrontation
objection made to the out-of-court statements by Nikki Simms, either by providing
good cause for her absence, or producing her if the court required live testimony.
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Williams, 994 F.2d 1287, 1294 (8th Cir. 1993). As Simms gave the district court no
opportunity to address the Bell issue regarding Nikki Simms, there was no plain error.
The judgment of the district court is affirmed.
BYE, Circuit Judge, dissenting.
I respectfully dissent. I depart from the majority only to the extent the majority
concludes the district court’s admission of Probation Officer Young’s testimony
regarding 2010 battery conviction was harmless. I do not believe we can
conclusively hold the admission harmless based on this record.
The majority deems the admission harmless, citing the admission of the
transcript of judgment evidencing the 2010 battery conviction, and the district court’s
statement the 60-month sentence was based “especially” on the violent 2012 incident.
Probation Officer Young’s testimony regarding the events leading up to the
battery conviction, however, went beyond the contents of the transcript of judgment,
which solely concerned the fact of the conviction. Probation Officer Young
improperly testified to the violent character of Simms’s actions during those events.
It is to be noted here that the district court’s revocation and sentence had two
aspects. It found the fact of Simms’s 2010 battery conviction as one of the grounds
to conclude Simms had committed a Class A violation of his probation. The district
court then, based on the violent nature of Simms’s 2010 and 2012 actions, departed
and varied upward from the Guidelines range associated with a Class A violation.
It is possible the district court based the sentence solely on the violence of the
2012 events. However, I do not discount the possibility that a portion of the sentence
was based on the testimony Simms had engaged in other violent violations of his
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parole. Accordingly, because I believe we cannot definitively hold the admission of
Probation Officer Young’s testimony about the events leading to the 2010 conviction
as being harmless, I would vacate the revocation and remand the case to the district
court for a new revocation hearing.
For the foregoing reason, I respectfully dissent.
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