United States v. Black ( 1997 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 97-4127
BYRON D. BLACK,
Defendant-Appellant.
Appeal from the United States District Court
for the Eastern District of North Carolina, at Raleigh.
James C. Fox, Chief District Judge.
(CR-96-176-F)
Submitted: October 10, 1997
Decided: November 10, 1997
Before HAMILTON, LUTTIG, and MICHAEL, Circuit Judges.
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Affirmed by unpublished per curiam opinion.
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COUNSEL
William Arthur Webb, Federal Public Defender, G. Alan DuBois,
Assistant Federal Public Defender, Raleigh, North Carolina, for
Appellant. Janice McKenzie Cole, United States Attorney, Anne M.
Hayes, Assistant United States Attorney, Raleigh, North Carolina;
Captain Christine R. Helms, Special Assistant United States Attorney,
OFFICE OF THE STAFF JUDGE ADVOCATE, Fort Bragg, North
Carolina, for Appellee.
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Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
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OPINION
PER CURIAM:
Byron D. Black appeals his conviction after a jury trial for driving
while impaired in violation of 18 U.S.C.A. § 13 (West Supp. 1997),
assimilating North Carolina law. Black alleges that the magistrate
judge erred by allowing the Government to enter a police report into
evidence in violation of Fed. R. Evid. 803(8)(B) and 801(d)(1)(B).
For the reasons that follow, we affirm.
Testimony by Sergeant Young, a military policeman (MP),
revealed the following. At approximately 3:00 a.m. on April 14, 1996,
Young and another MP observed Black, driving a Pontiac, make sev-
eral attempts to make a left turn over a curb. After these attempts
failed, Black backed up to a traffic light; when the light turned red,
he continued down the street. When the MPs stopped the car, Young
smelled alcohol. Black admitted he had been drinking but stated he
did not know how many beers he had consumed. After Black failed
three field sobriety tests, in which the MPs had to hold him up several
times to prevent him from falling, they attempted to handcuff him and
take him to the station. Black screamed and cursed in Young's face
and "made a swing" at him; it took three MPs to get him into the
police vehicle. While en route to the MP station, Black was calm and
appeared to recite Bible verses. At the station, Black refused to take
a breath alcohol test on three separate occasions, each spaced thirty
minutes apart. He also turned violent several times, yelling at and
cursing the MPs, destroying a chair, banging on a plexiglass window,
and pushing an MP up against a wall.
Following this testimony, but still during Young's direct testimony,
the Government introduced an alcohol influence report (AIR) that
Young had completed. The AIR is a checklist requiring an MP to
describe a suspect's appearance, conduct, breath, attitude, and perfor-
mance of sobriety tests. Black's counsel objected to the report being
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entered into evidence because it was hearsay. The Government
answered that it sought to introduce the AIR into evidence on the
ground that it was a business record created in the normal course of
business, an exception to the rule excluding hearsay. See Fed. R.
Evid. 803(6). The magistrate judge conducting the trial admitted the
AIR into evidence on that basis.
On appeal, the district court determined that the magistrate judge
erred by allowing the AIR into evidence under Fed. R. Evid. 803(6),
because Fed. R. Evid. 803(8), which allows certain public records and
reports to be admitted as exceptions to the hearsay rule, specifically
excludes records and reports "in criminal cases[where] matters [are]
observed by police officers and other law enforcement personnel
. . . ." Fed. R. Evid. 803(8)(B). Nonetheless, the district court found
the error harmless, because the AIR essentially detailed events to
which Young had already testified. Thus, the district court reasoned
that, because the AIR was merely duplicative of Young's testimony,*
it could not have affected the jury's verdict or prejudiced Black.
We review evidentiary rulings for an abuse of discretion, and such
rulings are subject to a harmless error analysis. See United States v.
Brooks, 111 F.3d 365, 371 (4th Cir. 1997). "In order to find a district
court's error harmless, we need only be able to say with fair assur-
ance, after pondering all that happened without stripping the errone-
ous action from the whole, that the judgment was not substantially
swayed by the error." Id. (citation omitted). Without deciding whether
the magistrate judge erred by admitting the AIR into evidence in vio-
lation of Rule 803(8), we find that any error was harmless. Given the
extensive nature of Young's testimony regarding Black's drunken
conduct and that the AIR merely bolstered this testimony, we find that
any prejudice to Black was harmless. See Brooks , 111 F.3d at 371.
Also, Black's counsel used the AIR to impeach Young.
Black also argues that admission into evidence of the AIR was in
violation of Fed. R. Evid. 801(d)(1)(B). He cites United States v.
Bolick, 917 F.2d 135 (4th Cir. 1990), as support. As noted by the
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*At trial Black's counsel objected to the entry of the AIR because,
"[t]he witness [Young] has already testified to this information." (Joint
appendix "J.A." at 48).
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Government, however, because Black did not object to admission of
the report on this basis, we review only for plain error. See Fed. R.
Evid. 103(a)(1); Fed. R. Crim. P. 52(b).
In Bolick, a government agent testified at trial to information he
had received from three confidential informants, who thereafter testi-
fied as government witnesses. "The government's case against Bolick
relied exclusively on the observations of three witnesses [confidential
informants] who were present when Bolick allegedly supplied . . . the
cocaine . . . ." 917 F.2d at 136. Therefore, in Bolick we determined
that the error in failing to obey the requirements of Rule 801(d)(1)(B)
constituted reversible error because "the government's entire case
against Bolick" consisted of peremptorily bolstered statements from
declarants whose "character for veracity . . . was extremely doubtful."
917 F.2d at 140. In the present matter, however, no government agent
was used to bolster an inherently suspect witness prior to impeach-
ment. Rather, the Government merely introduced the AIR--which
Young himself had completed--into evidence following his direct
testimony. See also Ross v. Saint Augustine's College, 103 F.3d 338,
342 (4th Cir. 1996) (distinguishing Bolick when witness was not par-
ticularly suspect, the statements at issue were corroborated by other
evidence, and the witness was subject to cross examination). Thus, we
do not find admission of the AIR was plain error under Rule
801(d)(1)(B).
Accordingly, we affirm. We dispense with oral argument because
the facts and legal contentions are adequately presented in the materi-
als before the court and argument would not aid the decisional pro-
cess.
AFFIRMED
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