United States v. Wofford ( 2019 )

FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT March 5, 2019
_________________________________
Elisabeth A. Shumaker
Clerk of Court
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v. No. 18-5029
(D.C. No. 4:17-CR-00085-JED-1)
JOSHUA WOFFORD, (N.D. Okla.)
Defendant - Appellant.
_________________________________
ORDER AND JUDGMENT*
_________________________________
Before LUCERO, MORITZ, and EID, Circuit Judges.
_________________________________
Joshua Wofford appeals from his jury conviction for carjacking. See 18 U.S.C.
§ 2119. He argues that (1) the district court erred in admitting eyewitness-
identification evidence that he claims was unreliable and based on an unduly
suggestive photo lineup; and (2) the district court abused its discretion in excluding
his proffered expert testimony about eyewitness-identification evidence. Finding no
reversible error on either point, we affirm.
*
This order and judgment isn’t binding precedent, except under the doctrines
of law of the case, res judicata, and collateral estoppel. But it may be cited for its
persuasive value. See Fed. R. App. P. 32.1; 10th Cir. R. 32.1.
Background
One evening in June 2017, Daisy Ellis and Daniel Harris pulled into the
parking lot of a Quik Trip convenience store in Tulsa, Oklahoma. Ellis was driving,
and her husband Harris sat in the front passenger seat. As they entered the lot, Ellis
and Harris “noticed a man standing with his leg propped up against the wall to the
side of the Quik[ ]Trip.” R. vol. 1, 188. Harris testified that Ellis told him the man
looked like he was “up to no good.” R. vol. 3, 96. Ellis went inside the store, but
Harris stayed in the car and kept an eye on the man.
Minutes later, Jose Cruz-Gonzalez pulled his truck into the parking lot and
parked immediately to the right of Harris’s car. Cruz-Gonzalez went inside the store
while his wife, Heidi Argumedo, remained in the truck with their three children. The
man who had been leaning against the side of the store then approached the driver’s
side of Cruz-Gonzalez’s truck and stood between Harris’s car and the truck. Harris
asked the man what he was doing, and he replied, “I’m taking this truck.” Id. at 98.
Harris responded, “No, you’re not,” and began to open his door. Id. But when the
man said he had a gun, Harris decided to stay in his car.
The man opened the door of Cruz-Gonzalez’s truck, pointed a gun at
Argumedo’s head, and told her to get out of the truck. She and her children exited the
truck, went inside the store, and asked the clerk to call the police. The man then got
in the truck and drove away. Video surveillance didn’t capture a clear image of the
carjacker’s face, but it did capture an image of a white male wearing black pants,
black shoes, and a white, V-neck T-shirt over a black T-shirt with a red logo or
2
design on it. The top of the black T-shirt and a small portion of the red logo or design
were visible above the collar of the V-neck of the white T-shirt.
Soon thereafter, Tulsa Police Officer Garrett Higgins saw a truck matching the
description of the stolen vehicle and began pursuing it. During the pursuit, the man
driving the truck turned onto a dead-end street, requiring him to turn around. As
Higgins navigated past the truck on the dead-end street, he “came door to door” with
it. Id. at 139. Higgins testified that he was traveling between 15 and 30 miles per
hour at the time and that he “got a good look” at the driver. Id. at 140. Higgins
observed that the driver, a “bald white male wearing a white T-shirt,” matched the
radio description of the carjacking suspect. Id. at 281. Higgins also recognized the
driver from a prior arrest, though he didn’t recall his name.
Ultimately, the driver abandoned the truck in a ditch. Law enforcement
quickly found the truck, set up a perimeter, and began searching the area. Higgins
found a white, V-neck T-shirt on the ground about 10 to 20 yards away from the
truck. After about two hours, K-9 officers discovered Wofford in a wooded area not
far from the abandoned truck. Wofford was wearing a black shirt with a red logo or
design on it, black shorts, and no shoes. Higgins identified Wofford as the man he
saw driving the truck during the earlier pursuit.
A few hours later, law enforcement interviewed Harris. Harris reported that the
man he saw take the truck was a white male with a scar on the right side of his face,
wearing a white shirt, black jeans, and black shoes. At that point, law enforcement
3
informed Harris that they had arrested a suspect. Later, Harris searched the internet to
see who had been arrested and saw Wofford’s photo on a jail website.
After Wofford’s arrest, Tulsa Police Detective Jeffrey Gatwood assembled a
photo lineup to show to Harris. Gatwood chose not to use the mugshot taken after
Wofford’s arrest for carjacking because in that photo, Wofford had blood on his face.
Gatwood instead used Wofford’s next-most-recent mugshot, which included a visible
tattoo underneath Wofford’s right eye. Gatwood then used a database system to select
five other photos of men who matched Wofford’s age, race, height, weight, hair
color, and eye color. However, amidst the matching photo options, Gatwood was
unable to locate any photos of men with similar facial tattoos. As such, although the
six photos depicted men with similar facial characteristics and coloring, only
Wofford’s photo showed a facial tattoo.
Two days after the carjacking, Gatwood showed Harris the lineup and asked
him “to look at each photo carefully, to take his time, and to not feel like he was
being pressured.” R. vol. 1, 192. Additionally, he instructed Harris to let him know if
the carjacker wasn’t in the photo lineup. Harris identified the photo of Wofford as the
man he saw commit the carjacking.
The government charged Wofford with carjacking and using a firearm during
and in relation to a crime of violence. Wofford filed a motion to suppress, seeking to
prevent Harris from identifying him at trial. Wofford argued that the photo lineup
Gatwood showed to Harris was unduly suggestive and that Harris’s identification was
unreliable. At the hearing on the motion, Harris, Higgins, and Gatwood testified
4
about the facts described above. Additionally, Wofford presented expert testimony
about eyewitnesses from Scott Gronlund, a professor of psychology at the University
of Oklahoma. Gronlund opined that because Harris viewed Wofford’s photo on the
internet before Gatwood showed him the lineup, Harris’s lineup identification was
unreliable. Specifically, Gronlund said that “it’s at least possible that [Harris’s]
memory [wa]s created or at least updated and modified by seeing [Wofford’s] face”
on the internet. R. vol. 3, 179. Additionally, Gronlund testified that the composition
of the lineup affected the reliability of the identification because the tattoo on
Wofford’s face makes his photo “stand[] out from the others.” Id. at 180.
The district court concluded that the lineup wasn’t unduly suggestive and
accordingly denied Wofford’s motion to suppress. Further, it granted the
government’s motion—made orally during the suppression hearing—to exclude
Gronlund’s testimony from trial. It concluded that the testimony (1) wouldn’t be
helpful to the jury, (2) was “devoid of the application of a reliable methodology to
the evidence of this case,” and (3) would risk “confusing the jury and invading the
jurors’ province to determine witness credibility.” R. vol. 1, 201–02.
After the trial, the jury found Wofford guilty of carjacking.1 The district court
sentenced him to 162 months in prison and three years’ supervised release. Wofford
appeals.
1
The jury acquitted him of using and carrying a firearm during and in relation
to a crime of violence. See 18 U.S.C. § 924(c)(1)(A)(iii).
5
Analysis
I. The Photo Lineup
Wofford argues that the district court should have suppressed Harris’s in-court
identification of him because the photo lineup from which Harris initially identified
Wofford was unduly suggestive and the identification overall was unreliable. See
United States v. Kamahele, 748 F.3d 984, 1019 (10th Cir. 2014) (noting that in
challenge to photo lineup, we first ask whether lineup was “unduly suggestive” and
then ask “whether the identification[] w[as] still reliable in view of the totality of the
circumstances”). The government argues to the contrary, contending that the photo
lineup wasn’t unduly suggestive and that Harris’s identification was reliable.
We need not resolve this dispute. That’s because we agree with the
government that even assuming the photo lineup was unduly suggestive and Harris’s
identification was unreliable, any error in admitting Harris’s identification evidence
was harmless beyond a reasonable doubt.2 See Biggers v. Tennessee, 390 U.S. 404,
408–09 (1968) (noting that admission of unreliable identification evidence based on
unduly suggestive lineup violates defendant’s due-process rights and thus must
2
Wofford failed to explicitly address harmlessness in his opening brief, and he
didn’t file a reply brief. Accordingly, we could find that Wofford waived any
argument against finding this error harmless. See United States v. Montgomery, 550
F.3d 1229, 1231 n.1 (10th Cir. 2008) (noting that failure to make argument on appeal
results in waiver). Nevertheless, at oral argument, Wofford’s counsel responded to
questions from the panel regarding harmlessness. Additionally, we discern in
Wofford’s opening brief some implicit rebuttals to the government’s harmless-error
argument. In the interest of a complete harmless-error analysis, we exercise our
discretion to overlook Wofford’s waiver.
6
satisfy constitutional harmless-error standard); Chapman v. California, 386 U.S. 18,
24 (1967) (“[B]efore a federal constitutional error can be held harmless, the court
must be able to declare a belief that it was harmless beyond a reasonable doubt.”);
United States v. Ciak, 102 F.3d 38, 42 (2d Cir. 1996) (assuming error and moving
straight to constitutional harmlessness).
The government first asserts that this error was harmless because Harris wasn’t
the only witness who identified Wofford at trial; Officer Higgins also identified him.
Recall that Higgins testified about pursuing the carjacked vehicle and seeing Wofford
in the driver’s seat—at close range and a relatively slow speed—when Wofford
turned around on a dead-end street. After other officers apprehended Wofford,
Higgins identified him as the individual he saw driving the carjacked vehicle. He
likewise identified Wofford at trial.
On appeal, Wofford attempts to undermine the credibility of Higgins’s
identification. He points out that Higgins saw the driver of the carjacked vehicle on a
rainy night, through a window, while driving between 15 and 30 miles per hour. As
such, he contends that Higgins had “only a fleeting opportunity to view the driver” of
the carjacked vehicle. Aplt. Br. 29. But Wofford didn’t object to Higgins’s
identification below. And the circumstances of Higgins’s identification aren’t so
unlikely as to be unbelievable. The vehicles slowed down to turn around on the dead-
end street, and Higgins said he got “a good look” at the driver while they were “door
to door.” R. vol. 3, 139–40. As such, the existence of Higgins’s identification
strongly indicates that any error in allowing Harris to identify Wofford at trial was
7
harmless beyond a reasonable doubt. See United States v. Hill, 604 F. App’x 759,
787–88 (10th Cir. 2015) (finding error harmless beyond reasonable doubt because
two other eyewitnesses also identified defendant and defendant failed to object to
those identifications); Ciak, 102 F.3d at 42–43 (finding harmless error in part because
another witness identified defendant at trial); cf. Biggers, 390 U.S. at 409 (finding
error wasn’t harmless because it “was the only evidence of identification”).
As additional support for its harmless-error argument, the government points
to the strong circumstantial evidence that Wofford committed the carjacking. For
instance, the officers discovered Wofford in the woods about 150 yards away from
the vehicle that had been carjacked. Further, the surveillance video shows that the
individual who committed the carjacking wore a white, V-neck T-shirt over a black
shirt with a red logo or design on it. That outfit aligns with the clothing either worn
by Wofford at the time of his arrest or found nearby. Specifically, when the officers
found Wofford, he was wearing a black T-shirt with a red logo, and officers found a
discarded white, V-neck T-shirt about 10 to 20 yards from the carjacked vehicle.
Wofford, for his part, insists that the evidence against him was weak. In
support, he points out that law enforcement (1) never located the gun allegedly used
during the carjacking and (2) didn’t identify Wofford’s DNA on the white T-shirt
discovered outside the truck. He also points to his acquittal on the firearm charge,
stating that it “dispels any conclusion that the government’s evidence was
overwhelming, or even strong.” Aplt. Br. 29.
8
We disagree that these evidentiary absences undermine the strong
circumstantial evidence that Wofford committed the carjacking. Indeed, the absence
of proof of a firearm likely explains why the jury acquitted Wofford of the firearm
charge, but it doesn’t have much to do with whether Wofford in fact committed the
carjacking. As for the white T-shirt, the testimony at trial was that “there were no
DNA samples that could be retrieved from the white T-shirt,” not that Wofford’s
DNA wasn’t found on the shirt. R. vol. 3, 330 (emphasis added). Moreover, the lack
of Wofford’s DNA on the white T-shirt doesn’t undo the strong inference that
Wofford—wearing a white V-neck, T-shirt over a black T-shirt with a red logo or
design on it—committed the carjacking and then shed the white T-shirt after
abandoning the carjacked vehicle. This strong circumstantial evidence is further
reason to find any error in admitting Harris’s identification harmless beyond a
reasonable doubt. See United States v. Rogers, 126 F.3d 655, 660 (5th Cir. 1997)
(finding harmlessness in part because other evidence of guilt was overwhelming,
including clothing from surveillance video found in defendant’s home and car); Ciak,
102 F.3d at 42–43 (finding harmlessness because of strong circumstantial evidence of
guilt, including that defendant matched detailed suspect description).
In sum, because of the other witness identification and the strong
circumstantial evidence against Wofford, we are convinced that the jury would have
rendered a guilty verdict in the absence of Harris’s identification. Thus, any error in
admitting Harris’s identification was harmless beyond a reasonable doubt.
9
II. The Expert Testimony
Wofford next challenges the district court’s decision to exclude Gronlund’s
testimony from trial. We review that decision for an abuse of discretion. United
States v. Rodriguez-Felix, 450 F.3d 1117, 1122 (10th Cir. 2006). Federal Rule of
Evidence 702 requires a district court to “satisfy itself that the proposed expert
testimony is both reliable and relevant . . . before permitting a jury to assess such
testimony.” Id. Reliability is about “the reasoning and methodology underlying the
expert’s opinion.” Id. at 1123 (quoting Dodge v. Cotter Corp., 328 F.3d 1212, 1221
(10th Cir. 2003)); see also Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 592–
93 (1993) (setting out nonexclusive factors for district court’s “preliminary
assessment of whether the reasoning or methodology underlying the testimony is
scientifically valid and of whether that reasoning or methodology properly can be
applied to the facts in issue”). Relevance is about whether the expert testimony “will
assist the trier of fact” or whether it instead falls “within the juror’s common
knowledge and experience” and “will usurp the juror’s role of evaluating a witness’s
credibility.” Rodriguez-Felix, 450 F.3d at 1123.
Here, the district court concluded that Gronlund’s testimony was neither
reliable nor relevant. First, it found that Gronlund’s “very generalized descriptions of
studies and his overall experience” didn’t “present a reliable methodology or explain
how any such methodology can be reliably applied to the evidence.” R. vol. 1, 201.
As such, the district court reasoned, Gronlund’s testimony was “devoid of the
application of a reliable methodology to the evidence of this case.” Id. Second, the
10
district court determined that the evidence would “not help the jury to understand the
evidence or to determine a fact in issue in this case.” Id. On the contrary, the district
court concluded that Gronlund’s ultimate conclusion—that “[t]he eyewitness
evidence in this case is weak and problematic,” Supp. R. vol. 1, 8—would “present a
serious risk of confusing the jury and invading the jurors’ province to determine
witness credibility,” R. vol. 1, 202.
On appeal, Wofford first argues that Gronlund’s testimony was reliable
because “he relied on his findings and the findings of other experts in his field.” Aplt.
Br. 31. Specifically, Wofford points out that Gronlund “reviewed numerous field
studies on identification issues and had published numerous reports on his own
studies.” Id. But beyond these conclusory statements, Wofford doesn’t challenge the
district court’s conclusion that Gronlund’s “experiments with students outside of
real-world circumstances and his review of research into other potential problems
with eyewitness identification issues is unhelpful to the specific evidence in this
case.” R. vol. 1, 201. Indeed, Wofford fails to explain how Gronlund’s general
expertise in this area relates to the specific evidence in this case. As such, we discern
no abuse of discretion in the district court’s reliability finding. See Rodriguez-Felix,
450 F.3d at 1126 (finding no abuse of discretion in exclusion of expert testimony
where expert relied primarily on “generalized assertions regarding the factors which
can affect an eyewitness’s identification”).
Wofford next attacks the district court’s relevance finding. He asserts that
Gronlund’s testimony would not have addressed “whether a particular witness [wa]s
11
lying,” but rather “would have educated the jurors to provide them tools by which
they could assess the witness’[s] credibility or reliability.” Aplt. Br. 33. But this
argument merely suggests that Gronlund’s expert testimony would provide the jury
with the same information as “skillful cross-examination.” Rodriguez-Felix, 450 F.3d
at 1125. Indeed, when cross-examining Harris, defense counsel highlighted various
issues with the reliability of Harris’s identification of Wofford, including
(1) inconsistencies between what Harris testified to at trial and the description he
gave on the night of the event and (2) Harris’s inability to recall what the carjacker
was wearing. Defense counsel also elicited the fact that Harris looked up Wofford’s
photo on the internet before selecting Wofford’s photo from the lineup. Further,
defense counsel inquired whether the stress of having a gun pointed at him affected
Harris’s memory of the carjacking. He also asked whether Harris’s brain injury
impacted Harris’s ability to recall events. Wofford points to nothing in Gronlund’s
testimony that would have helped the jury assess the reliability of Harris’s
identification more than or differently than this cross-examination. See id. at 1126(finding no abuse of discretion in district court’s lack-of-relevance finding because
“cross-examination amply exposed the common-sense deficiencies in the
prosecution’s identification case”). Thus, the district court didn’t abuse its discretion
in concluding Gronlund’s opinion wasn’t relevant.
Finding no abuse of discretion in any of the district court’s reasoning, we
affirm its order excluding Gronlund’s testimony from trial.
12
Conclusion
We assume that the photo lineup was unduly suggestive and that Harris’s
identification was unreliable. But we conclude that any error in admitting Harris’s
identification at trial was harmless beyond a reasonable doubt because another
witness also identified Wofford at trial and strong circumstantial evidence tied
Wofford to the carjacking. Additionally, we hold that the district court’s decision to
exclude Gronlund’s expert testimony wasn’t an abuse of discretion. Accordingly, we
affirm Wofford’s conviction.
Entered for the Court
Nancy L. Moritz
Circuit Judge
13