United States v. Kendricus Williams , 446 F. App'x 587 ( 2011 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 09-4812
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
KENDRICUS MARQUELL WILLIAMS,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh. Louise W. Flanagan,
Chief District Judge. (5:08-cr-00174-1)
Argued: May 12, 2011 Decided: September 20, 2011
Before DUNCAN and AGEE, Circuit Judges, and David C. NORTON,
Chief United States District Judge for the District of South
Carolina, sitting by designation.
Affirmed by unpublished per curiam opinion.
ARGUED: Joseph Edward Zeszotarski, Jr., POYNER SPRUILL LLP,
Raleigh, North Carolina, for Appellant. Jennifer P. May-Parker,
OFFICE OF THE UNITED STATES ATTORNEY, Raleigh, North Carolina,
for Appellee. ON BRIEF: George E. B. Holding, United States
Attorney, William M. Gilmore, Assistant United States Attorney,
OFFICE OF THE UNITED STATES ATTORNEY, Raleigh, North Carolina,
for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Kendricus Marquell Williams appeals his conviction on nine
counts of unlawfully obstructing, delaying, and affecting, and
attempting to obstruct, delay, and affect, commerce and the
movement of articles and commodities in such commerce by
robbery, in violation of 18 U.S.C. § 1951 (Counts One, Three,
Five, Seven, Nine, Eleven, Thirteen, Fifteen, and Seventeen);
nine counts of using and carrying a firearm during and in
relation to a crime of violence, in violation of 18 U.S.C. §
924(c)(1)(A) (Counts Two, Four, Six, Eight, Ten, Twelve,
Fourteen, Sixteen, and Eighteen); and possession of a firearm
and ammunition by a felon, in violation of 18 U.S.C. §§
922(g)(1) and 924 (Count Nineteen). Williams was sentenced to
235 months on each of Counts One, Three, Five, Seven, Nine,
Eleven, Thirteen, Seventeen, and Nineteen, to be served
concurrently; 84 months on Count Two, to be served
consecutively; and 300 months on each of Counts Four, Six,
Eight, Ten, Twelve, Fourteen, Sixteen, and Eighteen, to be
served consecutively.
On appeal, Williams raises several issues. Williams argues
that the district court should have suppressed his incriminating
statements because he invoked his right to counsel during a
custodial interrogation and because the failure to record his
statements violated due process. He contends that the district
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court should not have admitted evidence of a 911 call or
concerning an uncharged robbery. Finally, Williams argues that
the district court erred by denying his motion for acquittal on
two counts because of a variance between the indictment and the
proof at trial. For the reasons set forth below, we affirm.
I.
Williams first argues that his incriminating statements and
the fruits of those statements should have been suppressed.
When considering the denial of a motion to suppress, we review
factual findings for clear error and legal determinations de
novo. United States v. Lewis, 606 F.3d 193, 197 (4th Cir.
2010). Here, we “construe the evidence in the light most
favorable to the prevailing party,” the government, and give
“due weight to inferences drawn from those facts by resident
judges and law enforcement officers.” Id.The facts found by the district court are as follows.
After a high-speed chase, law enforcement officers apprehended
and interrogated Williams in connection with a robbery of a
convenience store. The officers advised Williams of his right
to remain silent and right to assistance of counsel. Williams
indicated that he wished to waive these rights both orally and
in writing. Then, during the course of the interview, and after
confessing to at least one robbery, Williams said, “I don’t
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think I want to say anything more until I talk to a lawyer.”
After making this statement, however, Williams continued to talk
and confessed to committing numerous robberies. The police did
not prompt Williams to continue speaking. On two additional
occasions during the interrogation, Williams confirmed his
desire to continue to speak with the officers. Williams then
led one of the officers to the scenes of some of the robberies
and confessed to additional robberies. The following day, an
officer again advised Williams of his rights, and Williams
signed a Miranda waiver form. Williams then confessed to two
additional robberies. The police did not make an audio or video
recording of Williams’ confession.
Williams challenges the district court’s denial of his
motion to suppress the incriminating statements he made during
these custodial interrogations. Williams argues that he invoked
his right to counsel and that his statements should have been
recorded. Williams’ arguments fail because his request for
counsel was equivocal, he reinitiated contact with the officers,
and he did not have a right to have his statements audio or
video recorded.
A.
Williams contends that his statement, “I don’t think I want
to say anything more until I talk to a lawyer,” was an assertion
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of his right to counsel, sufficiently clear to require cessation
of questioning by the officers. The district court concluded
that this statement was not a clear invocation of the right to
counsel. We agree.
In Davis v. United States, 512 U.S. 452, 461-62 (1994), the
Supreme Court held that a suspect must unequivocally state that
he desires the assistance of an attorney to invoke his Fifth
Amendment right to counsel. Such statements are analyzed under
an objective standard that takes into consideration the
circumstances surrounding the statement. Davis, 512 U.S. at 459(The suspect “must articulate his desire to have counsel present
sufficiently clearly that a reasonable police officer in the
circumstances would understand the statement to be a request for
an attorney”).
Williams’ statement is substantially similar to statements
the Supreme Court and this court have held to be equivocal, and
thus, insufficient invocations of the right to counsel. 1
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See, e.g., Davis, 512 U.S. at 455 (“Maybe I should talk to
a lawyer.”); United States v. Smith, 281 F. App’x 198, 200 (4th
Cir. 2008) (“I think I might need to talk to a lawyer.”);
Johnson v. Harkleroad, 104 F. App’x 858, 867 (4th Cir. 2004)
(“[M]aybe I should stop talking and get a lawyer.”); United
States v. Wheeler, 84 F. App’x 304, 306 (4th Cir. 2003) (“[I]
want[] to call my family to see about a lawyer.”); Burket v.
Angelone, 208 F.3d 172, 199 (4th Cir. 2000) (“I need somebody
that I can talk to.”); Mueller v. Angelone, 181 F.3d 557, 573
(4th Cir. 1999) (“Do you think I need an attorney here?”).
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Furthermore, as discussed below, this statement was made in the
midst of a continuous flow of conversation, thus, “in light of
the circumstances,” an objective listener could not have known
anything more than that Williams “might” have wanted the
assistance of counsel, which is an insufficient invocation of
Fifth Amendment rights. See id. We, therefore, agree with the
district court that Williams’ statement was equivocal and not
subject to suppression.
B.
Even if Williams had unequivocally invoked his right to
counsel, he waived it by continuing to speak with the officers
without their prompting. In Edwards v. Arizona, 451 U.S. 477,
484-85 (1981), the Supreme Court held that if a suspect has
“invoked his right to have counsel present during [a] custodial
interrogation,” authorities may not “subject [him] to further
interrogation . . . until counsel has been made available to
him, unless the accused himself initiates further communication,
exchanges, or conversations with the police.” See also United
States v. Cain, 524 F.3d 477, 482-83 (4th Cir. 2008) (“[W]here a
defendant initiates contact with law enforcement officers, he
may validly waive his Sixth Amendment rights, and submit to
Government interrogation, even if he is represented by an
attorney.”). As noted, the district court found that after
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Williams said, “I don’t think I want to say anything more until
I talk to a lawyer,” he continued speaking to the officer
without being prompted. Courts are required to determine
whether a defendant waived his Miranda rights under the totality
of the circumstances. United States v. Cardwell, 433 F.3d 378,
389 (4th Cir. 2005). Based on the totality of the
circumstances, Williams waived his Miranda rights by initiating
further conversation with the officers.
C.
Williams’ assertion of a constitutional right to have his
confession recorded is similarly unavailing. Williams reasons
that two jurisdictions, Minnesota and Alaska, have imposed a
duty to record a defendant’s purported confession, and that we
should find that, “under the specific facts of this case,” the
officers’ failure to record Williams’ statements violated his
due process rights. Williams fails to cite any binding legal
authority for this proposition, which we reject. Based on the
foregoing, we affirm the district court’s ruling denying
Williams’ motion to suppress his confession.
II.
Williams challenges the admission of evidence concerning an
uncharged robbery and a 911 recording. Pursuant to Rule 404(b)
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of the Federal Rules of Evidence, the district court admitted
evidence regarding Williams’ role in an uncharged robbery. The
evidence included testimony by Williams’ accomplice, who
explained that he assisted Williams in committing the uncharged
robbery in the period of time between the robberies charged in
Counts Eleven and Thirteen. The district court judge instructed
the jury that it could only consider the uncharged robbery to
evaluate the defendant’s motive, opportunity, intent,
preparation, plan, knowledge, identity, or absence of mistake or
accident, and that they could not use the evidence to determine
whether Williams had a “bad character” or to infer that Williams
committed the charged robberies because of a prior bad act. The
district court also admitted a recording of a 911 call
concerning the events charged in Counts Thirteen and Fourteen.
The call was made by a clerk who worked at a store Williams
robbed and was shot by Williams. The judge excluded the more
gruesome portions of the recording.
We review evidentiary rulings for abuse of discretion.
United States v. Basham, 561 F.3d 302, 325-26 (4th Cir. 2009).
The district court did not abuse its discretion in admitting
evidence concerning the uncharged robbery because the robbery
was relevant to Williams’ means, motive, identity, and modus
operandi, as required by Rule 404(b), and the court admitted the
evidence solely for a limited purpose. Details concerning the
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uncharged robbery also helped to establish that Williams
possessed a firearm in the days leading up to the robbery
charged in Count Thirteen. Any risk that the jury could have
misused this evidence was mitigated by the district court
judge’s appropriate limiting instruction. See United States v.
Branch, 537 F.3d 328, 342 (4th Cir. 2008), cert. denied, 129 S.
Ct. 943 (2009).
Williams’ argument that the 911 call was not probative of
any element of a crime is without merit. In the recording, the
clerk provided a description of the robber and stated that the
robber had carried a firearm during the commission of the
robbery. Furthermore, the danger of unfair prejudice did not
substantially outweigh the probative value of the evidence so as
to require exclusion under Rule 403: (1) the recording was the
only available description of the robbery and robber for Counts
Thirteen and Fourteen since the only witness, the clerk, had
returned to his home in India at the time of trial; 2 and (2) the
district judge excluded the more gruesome and potentially
prejudicial portions of the recording.
2
The district court found that the absence of the clerk
from the country was in no way the fault of the government.
Williams does not contest this finding.
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III.
Williams argues that pursuant to Rule 29 of the Federal
Rules of Criminal Procedure, the trial court should have
acquitted him of the robbery charged in Counts Eleven and Twelve
because the indictment incorrectly listed the name of the
convenience store which was robbed as “Uncle Bob’s Mini Mart”
instead of “Uncle Bill’s Mini Mart.” “A variance between the
indictment and proof at trial does not require reversal or
dismissal of those charges unless it affected the substantial
rights of the defendant and thereby resulted in actual
prejudice.” United States v. Mehta, 594 F.3d 277, 280 (4th Cir.
2010). Prejudice is apparent if “the variance surprises the
defendant at trial and thereby hinders his ability to prepare
for his defense. . . .” Id. at 281. The burden to show
prejudice is on the defendant. Id.Williams has never claimed that he was surprised by the
discrepancy between the indictment and the evidence presented at
trial. Before trial, Williams received copies of the police
reports regarding the robbery, which referred to the business by
both names. Furthermore, the indictment correctly lists the
address of the store that was robbed and all but one word of the
store’s name is correctly stated. We therefore affirm the
district court’s refusal to acquit Williams of Counts Eleven and
Twelve.
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IV.
Based on the foregoing, we affirm Williams’ conviction and
sentence.
AFFIRMED
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