Filed: Aug. 27, 2015
Latest Update: Mar. 02, 2020
Summary: UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 15-4031 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. DIARRA JERMAINE BODDY, Defendant - Appellant. Appeal from the United States District Court for the Southern District of West Virginia, at Charleston. John T. Copenhaver, Jr., District Judge. (2:14-cr-00038-1) Submitted: June 5, 2015 Decided: August 27, 2015 Before WYNN, DIAZ, and FLOYD, Circuit Judges. Affirmed by unpublished per curiam opinion. Wesley P. Page, FLAHERT
Summary: UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 15-4031 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. DIARRA JERMAINE BODDY, Defendant - Appellant. Appeal from the United States District Court for the Southern District of West Virginia, at Charleston. John T. Copenhaver, Jr., District Judge. (2:14-cr-00038-1) Submitted: June 5, 2015 Decided: August 27, 2015 Before WYNN, DIAZ, and FLOYD, Circuit Judges. Affirmed by unpublished per curiam opinion. Wesley P. Page, FLAHERTY..
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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 15-4031
UNITED STATES OF AMERICA,
Plaintiff − Appellee,
v.
DIARRA JERMAINE BODDY,
Defendant − Appellant.
Appeal from the United States District Court for the Southern
District of West Virginia, at Charleston. John T. Copenhaver,
Jr., District Judge. (2:14−cr−00038−1)
Submitted: June 5, 2015 Decided: August 27, 2015
Before WYNN, DIAZ, and FLOYD, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Wesley P. Page, FLAHERTY SENSABAUGH BONASSO PLLC, Charleston,
West Virginia, for Appellant. R. Booth Goodwin II, United
States Attorney, C. Haley Bunn, Assistant United States
Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Charleston, West
Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Diarra Jermaine Boddy appeals his conviction for unlawful
possession of a firearm by a convicted felon, in violation of 18
U.S.C. §§ 922(g)(1) and 924 (2012). Boddy seeks a dismissal of
the charge, contending that the government presented
insufficient evidence to support his conviction. Alternatively,
he requests a new trial, arguing that a government witness’s
testimony was unfairly prejudicial. For the reasons set forth
below, we affirm.
I.
A.
On appeal from a criminal conviction, we view the evidence
in the light most favorable to the government. United States v.
Herder, 594 F.3d 352, 358 (4th Cir. 2010).
On September 10, 2013, Patrolman Brian Lightner of the
Charleston, West Virginia Police Department observed Boddy
speeding on Kanawha Boulevard. Lightner followed Boddy’s
vehicle and saw him throw a firearm from the car as it turned
left onto Veazey Street. Boddy pulled slowly to the side of the
street where Lightner stopped him and called for backup.
Corporal Jarl Taylor arrived and located the firearm in a nearby
driveway. Lightner detained Boddy and then secured the firearm.
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B.
Prior to trial, Boddy filed a motion in limine to exclude
extrinsic offense evidence related to his arrest. Boddy sought
to exclude evidence that he (1) possessed a counterfeit
substance, (2) drove under the influence, and (3) was on
supervised release at the time of his arrest. The district
court granted his motion.
At trial, Lightner testified that Boddy was the vehicle’s
sole occupant and that he saw Boddy throw the firearm. Lightner
also testified that he called for backup and directed Taylor to
the firearm’s location. Taylor testified that he located the
firearm in the driveway to which Lightner directed him. The
government also introduced the firearm itself, pictures of the
firearm, and video footage from the camera mounted on Lightner’s
dashboard. The video shows Boddy’s driver’s side door wide open
as Lightner followed on Veazey Street, but does not show Boddy
throw the firearm. The video otherwise corroborates Lightner’s
testimony.
At the close of the government’s case, Boddy moved for a
judgment of acquittal under Fed. R. Crim. P. 29, which the
district court denied. Boddy’s sole witness testified that he
sold the vehicle to Boddy and that the driver’s side door
occasionally opened on its own. At the close of his case, Boddy
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renewed his Rule 29 motion, which the district court again
denied.
Following his conviction, Boddy moved for a judgment of
acquittal and for a new trial under Fed. R. Crim. P. 33. He
argued that Lightner gratuitously testified on cross-examination
to matters that Boddy had successfully moved to exclude, thus
denying him a fair trial. Specifically, Lightner told the jury
that (1) he testified at Boddy’s parole hearing at the jail, (2)
Boddy smelled of alcohol during the traffic stop, and (3) he
pulled “what appeared to be crack” from Boddy’s pocket after the
arrest. J.A. 140. 1 Boddy also challenged Lightner’s credibility
and the weight of the evidence. The district court again denied
Boddy’s motions.
Boddy filed a timely appeal.
II.
We first consider Boddy’s argument that he was entitled to
a judgment of acquittal because the government offered
insufficient evidence to support his conviction for being a
felon in possession of a firearm. We review de novo the
district court’s denial of Boddy’s Rule 29 motion. United
1 For the first time on appeal, Boddy complains about three
additional aspects of Lightner’s cross-examination testimony,
which we discuss in more detail later.
4
States v. Penniegraft, 641 F.3d 566, 571 (4th Cir. 2011). In
assessing the sufficiency of evidence, we construe all evidence
in the light most favorable to the government and will uphold a
jury’s verdict if any rational trier of fact could have found
the crime’s essential elements beyond a reasonable doubt.
Id.
To meet its burden of proof on the charged offense, the
government was required to establish that (1) Boddy was a
convicted felon, (2) Boddy knowingly possessed a firearm, and
(3) the firearm traveled in interstate commerce. United States
v. Langley,
62 F.3d 602, 606 (4th Cir. 1995) (en banc). Because
the parties stipulated to the first and third elements, we only
address whether the evidence was sufficient to prove Boddy
knowingly possessed the firearm.
Boddy insists the evidence was insufficient on this element
of the offense because the government failed to present DNA or
fingerprint evidence, non-law enforcement witnesses, or video of
Boddy throwing the gun. According to Boddy, Lightner’s critical
testimony—that he observed Boddy throw the gun—stands
uncorroborated.
We have held, however, that the uncorroborated testimony of
a single witness is sufficient to sustain a guilty verdict.
United States v. Arrington, 719 F.2d 701, 704-05 (4th Cir.
1983). Moreover, the government’s case did not rest solely on
Lightner’s testimony. Rather, it was also based on Boddy’s
5
being the sole occupant and owner of the vehicle, the video of
Boddy’s open car door, Lightner’s contemporaneous statement
requesting backup wherein he told the dispatcher that he saw
Boddy throw a gun, and Taylor locating the firearm where
Lightner directed him. We are satisfied that ample evidence
existed from which a jury could reasonably find Boddy knowingly
possessed the firearm. 2 We therefore reject Boddy’s first claim
of error.
III.
We next consider Boddy’s argument that the district court
erred in denying his motion for a new trial. We review the
denial of a motion for a new trial for abuse of discretion.
United States v. Singh, 54 F.3d 1182, 1190 (4th Cir. 1995). In
assessing whether to grant a new trial, a district court need
not view the evidence in the light most favorable to the
government and may consider witness credibility. United States
v. Arrington,
757 F.2d 1484, 1485 (4th Cir. 1985). However, the
district court must show deference to the jury’s verdict and
should grant a new trial only “[w]hen the evidence weighs so
2Boddy also contends that we should reject Lightner’s
testimony because it was not credible. But “[w]e, of course, do
not weigh the evidence or review the credibility of witnesses in
resolving the issue of substantial evidence.” Arrington, 719
F.2d at 704.
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heavily against the verdict that it would be unjust to enter
judgment.” Id.
Boddy here repeats his argument that the government
presented insufficient evidence to carry its burden, and we
again reject it. Boddy also says that the district court was
not sufficiently skeptical of Lightner’s credibility given that
it was central to the government’s case. Boddy, however,
effectively challenged Lightner’s credibility at trial and, like
the district court, we find no basis for upsetting the jury’s
decision to nonetheless credit Lightner. 3
We turn next to Boddy’s separate contention that Lightner
made a number of prejudicial statements on cross-examination
that warrant a new trial. Specifically, Boddy complains that
Lightner told the jury that (1) he previously testified at
Boddy’s parole hearing at the jail, (2) he pulled a substance
appearing to be crack cocaine from Boddy’s pocket, (3) Boddy
smelled of alcohol during the stop, (4) the government’s case
3
Boddy separately contends that opening a car door and
throwing a firearm across the street while turning left at a
high rate of speed, all in the five seconds his car was outside
the view of Lightner’s dashboard camera, is “a feat of
extraordinary dexterity and timing.” Appellant’s Reply Br. 8
n.3. The video, however, supports a more reasonable version of
events, i.e., that Boddy turned left and reduced his speed
before opening the car door and tossing the firearm.
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was “clearcut,” (5) fingerprint analysis is unreliable, and (6)
arrestees who curse are no longer citizens.
Boddy’s counsel did not object to statements 3, 4, and 6 at
trial, and thus our review is confined to plain error. 4 United
States v. Chong Lam, 677 F.3d 190, 201 (4th Cir. 2012). To meet
his burden, Boddy must show that (1) the district court
committed error, (2) the error was plain, and (3) the error
affected his substantial rights.
Id. Even assuming that the
district court plainly erred in not sua sponte striking the
statements, we hold that Boddy has failed to show that the error
affected his substantial rights.
Counsel did object to the remaining statements and he
affirmatively moved to strike them. The district court granted
the motions and later instructed the jury that it was to
disregard any evidence stricken by the court.
Limiting instructions are presumed to cure any error
committed by the introduction of improper evidence. United
States v. Johnson, 610 F.2d 194, 196 (4th Cir. 1979). And we
generally will reverse a defendant’s conviction based on the
4Boddy’s counsel not only failed to object to the statement
that Boddy smelled of alcohol during the stop, but he virtually
invited the answer when he asked Lightner, “[D]o you know what,
in terms of events that day, was there anything that occurred
that would—that might lead to Mr. Boddy appearing incoherent?”
J.A. 134.
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introduction of improper testimony only where the testimony was
central to the issue at trial and resulted from prosecutorial
misconduct. 5 See, e.g., Watkins v. Foster, 570 F.2d 501, 506
(4th Cir. 1978) (upholding habeas relief where prosecutor asked
prisoner, charged with burglary, detailed questions about six
prior burglaries); Lovely v. United States,
169 F.2d 386, 389
(4th Cir. 1948) (reversing conviction where prosecutor
introduced evidence of a prior rape defendant allegedly
committed just prior to the rape crime charged).
Lightner’s references on cross-examination to Boddy’s
parole hearing, to finding what he thought was crack cocaine on
Boddy’s person, and his opinion regarding fingerprint evidence,
while improper, were tangential to the central issue in this
case: whether Boddy knowingly possessed a firearm. And while we
do not condone improper testimony on crimes not charged in the
indictment, nothing in the record indicates that “the question
[or] the response carried the imprimatur of the [g]overnment.”
Johnson, 610 F.2d at 197. “[T]he Constitution entitles a
5
Boddy urges us to employ the following four-factor test to
analyze Lightner’s statements: (1) the degree to which the
remarks misled the jury and prejudiced the defendant; (2)
whether the remarks were isolated or extensive; (3) the strength
of the government’s case; and (4) whether the remarks were
deliberate. United States v. Harrison, 716 F.2d 1050, 1052 (4th
Cir. 1983). However, while these factors are generally
instructive, they are not directly applicable here because they
relate to statements made by a prosecutor rather than a witness.
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criminal defendant to a fair trial, not a perfect one,” Delaware
v. Van Arsdall, 475 U.S. 673, 681 (1986), and we are satisfied
that the court’s limiting instructions remedied any prejudice
caused by the statements.
IV.
We affirm the district court’s judgment. We deny Boddy’s
pro se motion requesting appointment of counsel to pursue a
motion for a new trial based on newly discovered evidence and
permission to file a supplemental brief. We also deny his
motion to hold this appeal in abeyance. We dispense with oral
argument because the facts and legal contentions are adequately
presented in the materials before this court and argument would
not aid in the decisional process.
AFFIRMED
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