Filed: Mar. 28, 2013
Latest Update: Mar. 28, 2017
Summary: UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 12-4684 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. LAMONT VAN HARRIS, Defendant - Appellant.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 Affirmed by unpublished per curiam opinion.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 &
Summary: UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 12-4684 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. LAMONT VAN HARRIS, Defendant - Appellant.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 Affirmed by unpublished per curiam opinion.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 & Y..
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UNPUBLISHED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Affirmed by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.
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 impermissibly suggestive because Bush admittedly
saw the same photograph used in the photo array 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 of the photo in the array was impermissibly
suggestive and that the identification procedure created a
substantial likelihood of misidentification. He also flatly
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asserts that Bush’s pre-trial identification was not
sufficiently reliable to permit an in-court identification.
This court reviews de novo a district court’s
admission of an eyewitness identification. United States v.
Saunders, 501 F.3d 384, 389 (4th Cir. 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 if the “identification was sufficiently reliable to
preclude the substantial likelihood of 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. See id. at
441. First, the defendant must show that the identification
procedure was impermissibly suggestive. Saunders, 501 F.3d at
389. If the defendant is successful, the court must consider
“whether the identification was nevertheless reliable in the
context of all of the circumstances.” Id. at 389-90. If a
witness’s out-of-court photo identification is unreliable and,
therefore, inadmissible, any in-court identification is also
inadmissible. Simmons, 390 U.S. at 383-84.
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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 the identification reliable, without determining
whether the identification procedure was unduly suggestive.
Holdren v. Legursky, 16 F.3d 57, 61 (4th Cir. 1994). In
assessing the reliability of an out-of-court 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 renders the identification reliable. Bush
identified his shooter within an hour of the 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 was familiar with the
Defendant from prior incidents. Bush was able to describe the
Defendant’s physical characteristics and provided the
Defendant’s first name and address. His description pointed to
a specific individual and not a 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 elapsed between the shooting and Bush’s
identification was not sufficiently lengthy to undermine its
reliability. As the district court noted, there were also other
factors 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 these facts, we conclude that the court did 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 of the evidence against him. The
Defendant argues that the Government had to prove that the
Defendant shot Bush because the only physical evidence of
possession of a firearm introduced at trial was five shell
casings found at the scene. 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 jury’s verdict must be sustained “if there is
substantial evidence, taking the view most favorable to the
Government, to support it.” 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 of fact 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 Government produced sufficient evidence to 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 testimony of ATF Special Agent Todd Willard
established an interstate nexus. Lastly, two 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. The Defendant’s girlfriend,
Doreen Motley, testified at trial. During voir dire, juror
number 11 stated that she was familiar with 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 analysis of the Defendant’s juror bias claim
begins with the Supreme Court’s holding in 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.” Id. at 556; Jones v. Cooper, 311 F.3d 306, 310 (4th
Cir. 2002) (recognizing the applicability of the McDonough
standard to federal criminal proceedings). We 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.” Fitzgerald v. Greene, 150 F.3d 357, 362-63 (4th Cir.
1998). A defendant is not automatically entitled to an
evidentiary hearing. However, post-trial, the movant has the
opportunity to demonstrate actual bias, or in exceptional
circumstances, that the facts are such that bias is to be
inferred, in order to grant a new trial. 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. This depiction is purely
conjectural, and the Defendant proffered nothing to suggest
otherwise. 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. 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
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