United States v. Hans , 332 F. App'x 116 ( 2009 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 07-5116
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
ERIC PRESTON HANS,
Defendant - Appellant.
Appeal from the United States District Court for the District of
South Carolina, at Greenville. Henry M. Herlong, Jr., District
Judge. (6:05-cr-01227-HMH-1)
Argued: March 25, 2009 Decided: May 29, 2009
Before DUNCAN, Circuit Judge, Robert J. CONRAD, Jr., Chief
United States District Judge for the Western District of North
Carolina, sitting by designation, and Thomas D. SCHROEDER,
United States District Judge for the Middle District of North
Carolina, sitting by designation.
Affirmed by unpublished opinion. Judge Conrad wrote the
opinion, in which Judge Duncan and Judge Schroeder joined.
ARGUED: Benjamin Thomas Stepp, OFFICE OF THE FEDERAL PUBLIC
DEFENDER, Greenville, South Carolina; Richard Walter Vieth,
HENDERSON, BRANDT & VIETH, Spartanburg, South Carolina, for
Appellant. Robert Frank Daley, Jr., OFFICE OF THE UNITED STATES
ATTORNEY, Columbia, South Carolina, for Appellee. ON BRIEF: W.
Walter Wilkins, United States Attorney, Columbia, South
Carolina, Regan A. Pendleton, Assistant United States Attorney,
OFFICE OF THE UNITED STATES ATTORNEY, Greenville, South
Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
2
CONRAD, Chief District Judge:
On November 16, 2005, a grand jury for the District of
South Carolina returned a one-count indictment against Eric
Preston Hans. The indictment charged Hans with maliciously
damaging and destroying, and attempting to damage and destroy,
by means of fire, the Comfort Inn and Suites at 831 Congaree
Road in Greenville, South Carolina, a building used in
interstate commerce, resulting in the death of six individuals
and in bodily injury to eleven individuals. For this 18 U.S.C.
§ 844(i) violation, the Government sought the death penalty.
The case went to trial on July 23, 2007. On August 2,
2007, the jury returned a guilty verdict. The jury was unable
to reach a unanimous verdict as to a sentence.
On October 25, 2007, the district court sentenced Hans to
life in prison and the court entered judgment on October 29,
2007. Hans timely appealed his sentence and conviction. We
hold that the district court did not violate Hans’s Sixth
Amendment Rights, nor did the court abuse its discretion when it
denied Hans’s motion for a mistrial. Further, we hold that the
Government presented sufficient evidence at trial to support
3
Hans’s conviction. We therefore affirm the district court’s
decision.
I. Relevant Facts
A. The Fire
On January 25, 2004, at approximately 4:22 a.m., the desk
clerk at the Comfort Inn and Suites at 831 Congaree Road,
Greenville, South Carolina (the “Comfort Inn”) made a 9-1-1 call
reporting a fire at the hotel. Approximately four minutes after
the first 9-1-1 call, Fire Engine 2 from Wade Hampton Fire
Department arrived on the scene. The firemen immediately
reported rolling flames and heavy smoke at the north exit door
of the third floor of the hotel, a five floor building. The
third floor exit door opens to the ground level at the back of
the Comfort Inn. 1 According to the first firefighter on the
scene, flames were coming out of the top of the door and rising
upward about two feet.
1
On the evening of the fire, the security access to the
hotel through the third floor exit door was not working, so
anyone could enter that door.
4
The firemen suppressed the fire within several minutes.
The Greenville County Sheriff’s Office Deputies joined the
firemen and assisted with the rescue of hotel guests.
The firemen reported that the area outside the rear third
floor door was littered with cardboard and Styrofoam packing
material. There was extensive fire damage in the area around
the door and nearby hallways. Investigators determined that no
accelerant was used, so the only way the extreme heat patterns
could have been produced was by a person placing combustible
materials (i.e., the cardboard boxes and Styrofoam) in the foyer
area and igniting them with a direct flame. A stack of
cardboard boxes inside the foyer had burned from the top down
and was still smoldering during the initial stages of the
investigation. Investigators concluded that arson caused the
fire, and that the fire was likely started between 4:05 a.m. and
4:10 a.m. on January 25, 2004.
B. Relationship between Cromer and Canty
As the investigation continued, law enforcement officers
learned that one of the deceased victims of the fire, Melba
Canty, and a surviving victim, Zachery Cromer, had a turbulent
relationship. Cromer and Canty had a sixteen-month old son,
5
who, along with Canty, died in the fire at the Comfort Inn.
Further, investigators found that Canty was friends with the
appellant, Hans, and that Hans and Cromer held significant
animosity toward each other in relation to Cromer’s treatment of
Canty. Cromer believed that Hans was extremely jealous of
Cromer’s relationship with Canty and that Hans continually
interfered in their lives. Cromer told law enforcement that his
house was broken into a few months prior to the fire, and that
Hans taunted him on the phone about being the one who committed
the burglary.
A couple of weeks before the fire, Canty needed a place to
stay and went to live with Hans. The week prior to the fire,
while Canty was living with Hans, the situation between Hans and
Cromer escalated with numerous belligerent phone calls back and
forth.
According to Cromer, he and Canty decided that they needed
to spend some time together with their son to try and mend their
relationship. On January 24, 2004, at approximately 10:30 p.m.,
6
a few hours before the fire, Hans rented a third floor room for
one week for Canty and her son at the Comfort Inn.
Later that same evening, Cromer arrived at the Comfort Inn. 2
After Cromer’s arrival, he and Hans argued on the phone. Cromer
told Hans that he and Canty were back together and that Hans
could do nothing to change that. Cromer testified that after
telling Hans that he and Canty were back together, Hans replied,
“she’s not going to stay up there with you. I’ll make sure of
it.” (J.A. 367). Telephone records confirm that Hans and
Cromer exchanged sixty-six phone calls on January 24. Cromer
acknowledged that during some of these calls he taunted Hans
about Canty.
Witnesses later verified that Cromer left the room around
2:00 a.m. on the morning of January 25th, and rode with two
friends to a nearby Waffle House to get take-out food to bring
back to Canty. Cromer returned to the Comfort Inn with the
food. Cromer reported that there were no boxes or debris on the
2
As part of their effort to mend their relationship, Canty
agreed to stop spending time with Hans, and Cromer agreed to
stop spending time with one of his female friends.
7
steps or in the walkway at the time but that there may have been
some boxes stacked next to the rear exit door. Cromer and Canty
then went to sleep and were later awakened by the fire alarms.
Cromer survived the fire, but Canty, her son, and four other
individuals died in the fire.
C. After the Fire
Shortly after the fire, investigators located Hans at the
Crowne Plaza Hotel, which is next to the Comfort Inn. Hans
waived his Miranda rights and agreed to be interviewed. In his
statement to the police, he claimed the following:
• After he checked Canty in at the Comfort Inn, he went to
Platinum Plus, a nearby strip club. 3
• He later left Platinum Plus, went home, and fell asleep.
• After receiving a call from a friend, he returned to
Platinum Plus.
• He stayed at Platinum Plus until around 3:30 a.m.
• He then attempted to go to a nearby storage unit to drop
some things off but could not get there because a police
car was blocking the road.
3
Platinum Plus strip club was only .9 miles from the Comfort
Inn and Hans was a regular patron at both.
8
• Next, he went back to Platinum Plus; on his way there,
he saw that the Comfort Inn was on fire.
• He stayed at Platinum Plus a few minutes before going
back to the storage unit; this time he was able to get
through.
Hans’s statements to police were contradicted by video
footage from Platinum Plus showing that Hans left Platinum Plus
at 4:01 a.m. Fire investigators estimated that someone started
the fire between 4:05 a.m. and 4:10 a.m. Video footage from a
Lowe’s parking lot camera across the street from the Comfort Inn
showed Hans driving through the parking lot at 4:15 a.m. Video
footage from the BP gas station camera, also across the street
from the Comfort Inn, showed Hans making a purchase from 4:22 to
4:23 a.m. The Comfort Inn records showed the fire being called
in at 4:22 a.m. and the 9-1-1 records showed the call about the
fire being received at 4:24 a.m. Video footage from Platinum
Plus showed Hans arriving in the parking lot again at 4:29 a.m.
and walking into the building at 4:31 a.m. Upon returning to
Platinum Plus at 4:31 a.m., Hans told several individuals that
he had not gone home because the Comfort Inn was on fire and
9
there was a roadblock. 4 According to police records, the first
roadblock was set up at 4:32 a.m., after Hans returned to
Platinum Plus. Numerous witnesses testified that Hans was not
concerned about the fire, even though he knew that Canty and her
son were staying at the hotel. Platinum Plus video footage
showed Hans leaving again at 4:55 a.m. The records at the
storage unit show that he checked into his storage unit at 5:03
a.m.
In July 2007 the case was tried capitally. During jury
selection, Hans sought to disqualify four jurors, because, he
claimed, they were biased. The district court refused to
disqualify them. Hans then used his peremptory challenges to
disqualify these jurors. The district court sua sponte
disqualified another juror for bias.
At trial, Canty’s aunt, Rolissa Jordan, testified that Hans
told her after the fire that the last thing Canty told Hans was
that she and Hans could no longer be friends because Canty was
4
The government introduced evidence that Hans would have
headed in a direction away from the roadblock and the Comfort
Inn if, as he told his friends, he intended to head home after
leaving Platinum Plus.
10
going back to Cromer. Jordan testified that Canty, in a similar
vein, also told Jordan that she was going back to Cromer.
Hans’s housemate, Rodney Babb testified at trial that the day
after the fire Hans said either “I did something bad” or
“Something bad happened.” (J.A. 997). These statements
differed from the statement Babb gave police earlier, at which
time Babb only said that Hans said “I done something really
bad.” 5 The prosecutor later impeached Babb with his prior
inconsistent statements to the police. Additionally, Curtis
Kricke, an inmate incarcerated with Hans on an unrelated charge
in December 2005, testified that Hans told Kricke that he, Hans,
started the fire at the Comfort Inn. 6
5
Previously, Hans’s housemates, Rodney Babb and Jill
LeGreca, told the police that the day after the fire Hans
stated, “I’ve done something really bad.” Hans also stated that
he could not tell Babb about it because Babb had a baby. (J.A.
995-1003; 1017; 1271). Babb became scared and called the police
in the middle of the night to report this statement. Babb and
LeGreca stayed that night at Babb’s parent’s house.
6
Although some of the details of Kricke’s testimony did not
match the actual incident (e.g., Kricke stated that Hans claimed
to have used an accelerant to start the fire), the account of
the confession and the inconsistencies were put before the jury.
11
During trial one of the prosecutors asked about an
“unrelated” criminal investigation in which Hans was involved.
Hans objected that the evidence was prejudicial and moved for a
mistrial. The district court sustained the objection, but
denied the motion for mistrial. The court gave a curative
instruction.
On August 2, 2007, the jury returned a guilty verdict. On
August 10, 2007, the sentencing phase of Hans’s trial ended with
the jury unable to reach a unanimous verdict on the imposition
of the death penalty. On October 25, 2007, the district court
sentenced Hans to life in prison. Hans timely appealed, raising
three issues: 1) whether the jury selection process violated
Hans’s Sixth Amendment rights; 2) whether the mention of Hans’s
unrelated criminal activity warranted a mistrial; and 3) whether
the Government presented sufficient evidence for Hans’s
conviction. We address each in turn.
II. Hans’s Right to an Impartial Jury
Hans contends that the district court committed three
errors during jury selection: 1) qualifying four jurors despite
their allegedly pro-death penalty responses to certain voir dire
questions about the death penalty; 2) not granting Hans’s
motions to excuse these four potential jurors for cause; and 3)
12
dismissing Juror 98 for cause after Juror 98 said that he was
ambivalent about whether the Government had the right to take a
life. This Court recognizes the district court’s crucial role
in assessing demeanor and credibility during jury selection.
Consequently, we review challenges to the jury selection with
great deference to the trial court. Our review is for abuse of
discretion. See United States v. Jones, 608 F.2d 1004, 1007
(4th Cir. 1979). Hans’s first and second contentions are
considered together.
A. Jurors Removed with Peremptory Challenges
Hans argues that the responses provided by four jurors
during voir dire reflected bias in favor of the death penalty.
Hans requested that each of these potential jurors be removed
for cause and the court denied the request. After the court
qualified these jurors, Hans struck all four jurors with
peremptory challenges. A “trial court’s refusal to strike a
juror for cause does not affect the right to an impartial jury
if the defense in fact strikes the juror with a peremptory
challenge.” Satcher v. Pruett, 126 F.3d 561, 574 (4th Cir.
1997).
Thus, with respect to these four jurors, Hans’s only
alleged injury is the loss of his peremptory challenges. Yet,
it is well settled that the loss of a peremptory challenge does
13
not violate a defendant’s constitutional right to an impartial
jury because “peremptory challenges are not of constitutional
dimension.” Ross v. Oklahoma, 487 U.S. 81, 88 (1988).
Therefore, the district court did not violate Hans’s Sixth
Amendment right to an impartial jury by either the qualification
of the four potential jurors or by the denial of the request to
strike the jurors for cause.
B. Dismissal of Juror by the Court
Next, Hans challenges the district court’s disqualification
of Juror 98. Hans argues that Juror 98's statement during voir
dire that he was “unsure that the Government had the right to
take a life,” (J.A. 100), should not have disqualified the
juror. Further, he argues that the court created a pro-
prosecution jury by dismissing such a juror.
In order to sustain a claim that a jury was not impartial
on a question of conviction, a defendant must show that a juror
who actually sat on the jury was biased, not that an allegedly
impartial juror was improperly dismissed. See id. at 86 (“Any
claim that the jury was not impartial . . . must focus . . . on
the jurors who ultimately sat” on the jury). In this case, Hans
presents no evidence that the sitting jurors were biased toward
the death penalty. Indeed, the jury here did not sentence Hans
14
to death. 7 The trial court’s dismissal of Juror 98 did not
violate Hans’s Sixth Amendment right to an impartial jury.
III. Hans’s Motion for a Mistrial
Hans next contends that the trial court erred in denying
his motion for mistrial after the Government presented
prejudicial testimony of possible unrelated criminal activity.
At the end of the second day of its case, the Government
called Investigator Mark Justice of the Greer Police Department
who testified that he obtained a search warrant for Hans’s
residence and seized items from the residence. The search
warrant was in an unrelated case. The Greer Police Department
7
The Supreme Court in Bumper v. North Carolina, upheld the
imposition of life in prison despite the contention that the
court dismissed jurors with hesitations about the death penalty
and found that the “decision in Witherspoon does not govern the
present case, because here the jury recommended a sentence of
life imprisonment.” 391 U.S. 543, 545 (1968). The Court
reiterated this distinction in Morgan v. Illinois, reversing a
death sentence based on inadequate voir dire, but noting that
this decision had “no bearing on the validity of petitioner’s
conviction.” 504 U.S. 719, 739 n.11 (1992); see also Gray v.
Mississippi, 481 U.S. 648, 650-51, 668 (1987) (observing that
the Witherspoon error means “a death sentence imposed by the
jury cannot stand,” and reversing judgment only “insofar as it
imposes the death sentence”).
15
turned over some of the seized items to the Bureau of Alcohol,
Tobacco, and Firearms (“ATF”) for its investigation of the
Comfort Inn fire. Hans objected to the Government’s questions,
which were prefaced by the comments that the search warrant was
“completely unrelated to this case” and “[h]ad absolutely
nothing to do with this.” (J.A. 588-89). He also objected to
Investigator Justice’s statement that ATF looked through the
items and determined that some of the items were “necessary for
their investigation.” (J.A. 589).
Hans claims that the Government insinuated that he was
involved in other criminal activity beyond the accusation of
arson through this line of questioning. Upon commencement of
the third day of the Government’s case, Hans moved for a
mistrial based on the questioning by the Government and the
testimony of Investigator Justice from the previous afternoon.
The district court agreed with Hans, stating, “[i]t was
improper to ask the questions the way they were asked because it
did reference possibly another criminal charge against this
defendant.” (J.A. 602). However, the district court denied the
motion for a mistrial, and Hans accepted the district court’s
offer of a curative instruction in accordance with the guidance
of United States v. Martin, 756 F.2d 323 (4th Cir. 1985). See
id. at 328 (“Before granting a mistrial, the court should always
16
consider whether the giving of a curative instruction or some
alternative less drastic than a mistrial is appropriate.”).
We review a trial court’s decision to grant or deny a
mistrial for abuse of discretion. United States v. Guay, 108
F.3d 545, 552 (4th Cir. 1997). We will only disturb a decision
under the most extraordinary of circumstances: a showing of an
error that prejudiced the defendant’s substantial rights. See
United States v. Hayden, 85 F.3d 153, 158 (4th Cir. 1996). In
examining possible prejudice, a court must look at the complete
record and consider the offending actions in light of the
totality of circumstances. United States v. Nyman, 649 F.2d
208, 211-12 (4th Cir. 1980). This Circuit has adopted a three-
factor framework to aid this analysis, looking at: (1) the
closeness of the case; (2) the centrality of the issue affected
by the error; and (3) the district court’s mitigating steps.
United States v. Callanan, 450 F.2d 145, 151 (4th Cir. 1971).
The evidence against Hans was substantial. Notwithstanding
Hans’s argument of a possible alternative arsonist, the case was
not close. Ample evidence, including: video footage showing
Hans near the Comfort Inn both immediately before and after the
fire started, Hans’s threatening statements to Cromer before the
fire, the time during which Hans was unaccounted for, Hans’s
statements to his roommates after the fire, his inconsistent
17
statements to investigators about where he was during that
night, and Hans’s confession to a cellmate demonstrates the
strength of the Government’s case.
The second factor also tips in the Government’s favor.
Considering all of the testimony regarding drug use, drug
possession, time at strip clubs, and other generally
questionable behavior, the brief mention of a search of Hans’s
home in an unrelated matter was not central to the question of
guilt or Hans’s credibility. Hans’s credibility was at issue in
the timeline he provided police and the Government used
surveillance video to show deceit in Hans’s statements to the
police. The questioning by the Government which implied Hans’s
possible involvement in other criminal activity was not elicited
to show Hans’s duplicity; instead, the questions appear to be
merely an unpolished attempt to establish a chain of custody for
certain items. Lack of intent by the Government does not
exonerate it nor would it undo a harm if one existed, but the
context of the questioning is important. The Government did not
ask the question during a high pressure moment in the trial; it
was asked during mundane chain of custody questioning. The
Government had already presented evidence of other criminal
behavior related to Hans. Hans’s credibility and law abiding
status were already severely damaged; these passing references
18
to a search warrant in an unrelated matter were not dispositive
to any central issue in the case.
Finally, the district court’s curative instruction
mitigated any possible prejudice caused by the improper
questioning. Absent extreme circumstances, we presume that a
jury will follow instructions to disregard potentially
prejudicial evidence. United States v. Johnson, 114 F.3d 435,
444 (4th Cir. 1997).
The district court agreed that the Government’s questions
were improper. Yet, the district court reminded counsel that an
instruction might bring more attention to the issue than just
moving forward. Defense counsel still desired the instruction,
and the court provided a well-worded instruction to the jury. 8
8
The court gave the jury the following curative instruction:
“Before the Government calls its next witness I want to advise
you that yesterday one of the Government’s witnesses, an
officer, brought in evidence about a seizure of certain evidence
from the defendant pursuant to a search warrant. I believe he
was asked questions about was that something to the effect of in
another matter. Whatever reference there was, an inference by
the question to the officer that the search warrant was pursuant
to another matter, you are not to consider that in any way as
evidence of guilt as to this defendant.” (J.A. 604).
19
Further, Hans showed no extraordinary circumstances to merit an
inquiry into whether the jurors would apply the instruction, and
therefore, the curative instruction was appropriate.
The prosecutor’s unfortunate reference to a search warrant
in an unrelated matter was nonspecific, fleeting, and ultimately
harmless. Looking at the record as a whole, the strength of the
Government’s case, the lack of centrality of the issue of
possible other criminal conduct, and the court’s curative
instruction, we affirm the district court’s denial of the motion
for mistrial.
IV. Sufficiency of the Evidence
As his last argument for overturning his conviction, Hans
challenges the sufficiency of the evidence presented at trial.
Hans argues that the trial court erred in denying his motion for
acquittal under a sufficiency of evidence standard. 9 Hans faces
a “heavy burden” in contesting the sufficiency of the evidence
supporting a jury verdict. United States v. Abuelhawa, 523 F.3d
9Although Hans argues that a female friend of Cromer’s
should also have been a suspect, the relevant inquiry is whether
there was sufficient evidence to convict Hans.
20
415, 421 (4th Cir. 2008) (citation omitted). In resolving
issues of sufficiency of the evidence, this Court does not weigh
evidence or reassess the fact finder’s assessment of witness
credibility. United States v. Sun, 278 F.3d 302, 313 (4th Cir.
2002). Hans’s jury conviction must be sustained if, taking the
view most favorable to the Government, there is substantial
evidence to support the verdict. Glasser v. United States, 315
U.S. 60, 80 (1942). Substantial evidence is evidence that a
rational trier of fact could have found adequate and sufficient
to establish the essential elements of the crime beyond a
reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319
(1979). Reversal is reserved for the rare case where the
prosecution’s failure to produce such evidence is clear. United
States v. Jones, 735 F.2d 785, 791 (4th Cir. 1984).
To sustain a conviction for arson under 18 U.S.C. § 844(i),
the Government must prove that a defendant “(1) maliciously; (2)
damaged or destroyed a building . . . ; (3) by means of fire . .
. ; and (4) the building . . . was used in interstate or
foreign commerce or in any activity affecting interstate or
foreign commerce.” United States v. Gullett, 75 F.3d 941, 947
(4th Cir. 1996). Hans does not dispute elements three or four,
but instead argues that the evidence was insufficient to
establish elements one and two. However, when the evidence is
21
viewed in the light most favorable to the Government, a
reasonable jury could find that the Government proved these
elements beyond a reasonable doubt. Multiple witnesses
testified to Hans’s jealousy and that he felt threatened by the
likelihood that Cromer and Canty were about to patch up their
relationship and resume life together as a family, the result of
which would be the end of Hans’s friendship with Canty. These
witnesses provided evidence of Hans’s possible motive in
starting the fire: to vent his anger about Cromer and Canty or
to prevent the end of his friendship with Canty. Either of
these motives provides evidence of Hans’s malice.
Further, evidence presented by the Government places Hans
at the scene of the crime at the appropriate time. Government
evidence, both in the form of testimony and video footage,
establishes that Hans was at Platinum Plus Club, a short
distance from the Comfort Inn, before the fire and that he left
the club at 4:01 a.m. and returned at 4:29 a.m. The
Government’s fire reconstruction evidence indicated that the
fire was intentionally started between 4:05 a.m. and 4:10 a.m.
by someone lighting discarded packaging materials found
scattered in and around the Comfort Inn. A security video from
a gas station across the road from the Comfort Inn showed Hans
buying a drink there at 4:22 a.m. From (1) Hans’s motive; (2)
22
his presence in the vicinity of the hotel near the time of the
fire; (3) the readily available means used to start the fire;
and (4) his inculpatory statements to witnesses and his
inconsistent statement to law enforcement, a reasonable jury
could have concluded that Hans had the opportunity and means to
commit the arson.
The Government presented sufficient evidence that the fire
was intentionally set and ample evidence of Hans’s motive,
opportunity, deceit, and remorse. Although most of the
Government’s evidence was circumstantial, circumstantial
evidence, if probative, is enough to convict a defendant. 10 From
this cumulative evidence against Hans, a reasonable jury could
find that the Government established all the elements of the
arson beyond a reasonable doubt. Consequently, Hans’s
sufficiency of the evidence claim fails.
10
See United States v. Martin, 523 F.3d 281, 289 (4th Cir.
2008) (circumstantial evidence permitted a reasonable jury to
conclude that the defendant intentionally set a building ablaze
where there was evidence that (1)the fire was intentionally set
and evidence of (2) the defendant’s financial motive to cause
the fire; (3) the defendant’s opportunity to set the fire; (4)
the defendant’s presence alone in the building mere minutes
before the fire; and (5) the defendant’s lies to investigators).
23
V. Conclusion
For the reasons stated herein, the judgment of the district
court is
AFFIRMED.
24