United States v. Shannon ( 1994 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
______________
NO. 92-9083
______________
UNITED STATES OF AMERICA, Plaintiff-Appellee,
versus
TIMOTHY WAYNE SHANNON, Defendant-Appellant.
_________________________________________________________________
Appeal from the United States District Court for the
Northern District of Texas
_________________________________________________________________
May 4, 1994
Before POLITZ, Chief Judge, GARWOOD, Circuit Judge, and PARKER*,
District Judge.
ROBERT M. PARKER, District Judge:
Timothy Wayne Shannon was convicted by a jury of armed bank
robbery, using a firearm during and in relation to a federal crime
of violence, and possession of a firearm by a convicted felon. He
was sentenced to a total of 562 months in prison. Shannon appeals
the conviction on four grounds: 1) evidence of the involvement of
a firearm was not sufficient to support the convictions in counts
1, 2, and 3; 2) the district court abused its discretion in
refusing to suppress evidence and statements from an allegedly
unconstitutional, warrantless entry of a motel room; 3) the
district court's statements to a venireman deprived him of an
impartial jury; and 4) the district court abused its discretion in
*
Chief Judge of the Eastern District of Texas, sitting by
designation.
refusing to allow a collateral challenge to a prior state
conviction at sentencing. We AFFIRM.
FACTS AND PROCEDURAL HISTORY
On January 24, 1992, Patrick Shannon, brother of Timothy Wayne
Shannon (Shannon), purchased a Jennings .22 caliber semi-automatic
pistol which Shannon admitted to stealing, and which the Government
introduced at trial as Exhibit HG-1. On January 31, 1992, Shannon
entered First Gilbralter Bank in Richardson, Texas, approached
Johnnie Moore (Moore), a drive-thru window teller, demanded money
and drew a gun. Moore described the gun as being short, silver and
"like a cigarette lighter." Shannon then demanded the drawer
contents from adjacent teller Rebecca Cruz (Cruz). Cruz later
identified Shannon at trial as the bank robber, although she was
unable to pick out Shannon from a spread of photos shown to her by
the FBI, and testified that the bank robber had a gun that appeared
to be or was the gun introduced by the Government as Exhibit HG-1.
While Shannon was addressing Cruz, Moore prepared bait money with
an exploding dye pack, pulling the clip which activated the bank's
surveillance camera. Cruz also activated the camera. Shannon left
the bank with approximately $3,100.00.
Shannon's probation officer, Elizabeth Epie, whom he visited
on January 31, testified at trial that Shannon was the person
photographed by the surveillance camera, and that he was wearing
the same clothes she had seen him in at their visit. Randall Riley
(Riley), and acquaintance of Shannon, also identified him as the
person in the surveillance camera photographs.
2
Rene Pieper (Pieper) was driving near the First Gilbralter
Bank when she observed a brown older model car with the engine
running in an alley near the bank. The driver of the car was
Charles Morse (Morse). Pieper testified that she saw Shannon run
from the bank into the path of her car. Then she saw the brown car
pull out with Shannon in the front passenger seat. She followed
the car and wrote down the license plate numbers, returned to the
bank, and reported what she saw to the police.
Morse testified that he took Shannon to Morse's house and
later to Room 140 at a Days Inn in Garland, Texas, where they
attempted to wash out the dye on the money with various chemicals.
Morse did not see Shannon with a gun on January 31, but did see him
in possession of a .22 semi-automatic pistol on a previous
occasion, and that the pistol he saw was similar to the
Government's Exhibit HG-1.
On February 5, 1992, FBI Agent Miles Burden filed a criminal
complaint against Shannon, and an arrest warrant was issued
charging Shannon with the January 31 robbery of First Gilbralter
Bank.
On February 6, 1992, Shannon was driving around in his car
with Riley when Shannon exited the car and entered the Lake
Highlands Branch of Bank One in Dallas, Texas. He approached Susan
Krempl, a teller at the drive-thru window and lobby window, showed
her a silver gun and demanded money. Krempl gave him bait money
containing a tracking device. She later identified Shannon as the
robber and also identified the bait money list. Another teller
3
activated the surveillance camera, but Shannon passed under the
camera before it was activated. He returned to the car with
approximately $2,900.00 in cash and a gun that resembled the
Government's Exhibit HG-1. He told Riley he had robbed the bank.
Shannon drove to the Jupiter Inn Motel, parked his car across
the street, and he and Riley went to Room 210, which was rented by
Robert Reid (Reid). Shannon placed the gun under the mattress and
tried to shave off his mustache. An Electronic Tracking System
(ETS) unit tracked the signal from the tracker device place with
the bait money to the Jupiter Inn Motel. With the hand-held ETS
unit, police officers tracked the signal to Room 211. Believing
that the robber was in Room 211, the officers decided to clear the
occupants in the surrounding rooms in case the incident led to an
exchange of gunfire. They knocked on Room 210; the door came open,
and they observed Shannon, Riley, and Reid sitting on the bed.
Dallas Police Officer Marvin Swafford (Swafford) noticed that
all three men fit the description of the suspect. He asked the men
to step out of the room. As Shannon walked past the officer
carrying the ETS unit, the signal "went directly" to one of
Shannon's boots. The officers searched the boot and discovered the
bait money and tracking device. All three men were arrested and
given their Miranda warnings. Shannon told Swafford that Riley and
Reid did not participate in the bank robbery, and that he acted
alone. Believing that the ETS unit was a metal detector, he told
the officers that the gun was under the mattress in the motel room.
The officers then entered the room and retrieved the gun from under
4
the mattress.
On February 26, 1992, Shannon was charged in a six-count
indictment with armed bank robbery, 18 U.S.C. §§ 2113(a) and (d)
(Counts 1 and 4), using a firearm during and in relation to a
federal crime of violence, 18 U.S.C. § 924(c)(1) (Counts 2 and 5),
and possession of a firearm by a convicted felon, 18 U.S.C. §
922(g)(1) (Counts 3 and 6). Shannon pleaded not guilty on all
counts and proceeded to trial before a jury. Prior to trial,
Shannon moved to suppress evidence seized from his person and from
the motel room and statements made to government agents and police
officers. The district court denied the motions. Shannon moved
for judgment of acquittal at the close of the Government's case-in-
chief, but did not renew that motion at the close of his own
evidence. The jury found Shannon guilty on all counts. He was
sentenced by the district court to a term of imprisonment totaling
562 months, along with supervised release for three years and
$3,631.00 in restitution. Shannon timely appeals.
MOTION TO SUPPRESS
In reviewing a district court's ruling on a motion to
suppress, the reviewing court must consider the evidence in the
light most favorable to the prevailing party, accepting factual
findings unless clearly erroneous and reviewing questions of law de
novo. United States v. Richard, 994 F.2d 244, 247 (5th Cir. 1993).
Shannon argues that the search of Room 210 of the Jupiter Inn
Motel on February 6, 1992 was unconstitutional, and that the
district court erred in refusing to suppress the fruits of that
5
search. He claims that the search amounted to a warrantless entry
without probable cause and absent exigent circumstances.
The Government argues that Shannon has failed to establish his
standing to challenge the search. In order to establish standing
to challenge the search, Shannon must show that he has a privacy or
property interest in the premises searched or items seized which
justifies a reasonable expectation of privacy therein. United
States v. Pierce, 959 F.2d 1297, 1303 (5th Cir.), cert. denied, ___
U.S. ___, 113 S.Ct. 621 (1992). We find it unnecessary to address
the issue of Shannon's standing since it does not effect the
outcome of this case. Therefore, we will assume, as the district
court did, that Shannon does have standing to challenge the search.
Shannon argues that there was no probable cause to support
entry of Room 210 because the ETS unit led police officers to
believe that the suspects would be found in Room 211. The ETS unit
led the officers to Room 211. Recognizing their obligation to
protect the occupants of the rooms adjacent to Room 211, the
officers knocked on the door of Room 210. When the door came open,
the officers did not enter the room. Instead, they asked the three
men inside (who they later discovered to be Shannon, Reid and
Riley) to clear the room so that they could secure the area. When
Shannon, Riley and Reid exited the room, the ETS unit alerted to
Shannon's boot. With probable cause to search Shannon's boot, the
officers discovered the tracker and the bait money and arrested all
three men. It was not until after Shannon was arrested and read
his Miranda warnings that he identified the location of the gun to
6
the officers stating, "Has that metal detector you have in your
hand discovered the gun is under the mattress in the room?" Then
Shannon indicated what side of the mattress the gun was under. The
officers did not enter the motel room until after Shannon directed
them to the mattress to recover the Government's Exhibit HG-1.
The warrantless search of someone's motel room is
presumptively unreasonable unless the occupant consents or exigent
circumstances exist to justify the intrusion. United States v.
Richard, 994 F.2d 244, 247 (5th Cir. 1993). If the officers have
no warrant or consent, they must have exigent circumstances to
enter a suspect's motel room, even if they already have probable
cause to arrest the suspect. Id. The exigent circumstances that
must exist include: hot pursuit of a suspected felon; the
possibility that evidence may be removed or destroyed; and danger
to the lives of officers or others. Id. at 247-48.
The district court found that the search of Room 210 of the
Jupiter Inn Motel and the seizure of the gun inside the room was
valid. Considering the record as a whole, we find that the
district court's findings were not clearly erroneous. The officers
had probable cause to arrest Reid, Riley and Shannon after
Shannon's boot alerted the ETS unit. Once the officers had
arrested the three suspects and given them their Miranda warnings,
Shannon informed the officers that a gun was still in the motel
room. Until that moment, the officers had not entered the motel
room, so they were unaware of who might still be inside the room.
After hearing Shannon's statement regarding the location of a gun,
7
it would be reasonable for the officers to believe that there was
a possibility of danger to themselves or other motel guests if an
unknown suspect who might still be inside the room were to gain
access to the gun after hearing Shannon tell the officers were the
gun was located. Therefore, we find that exigent circumstances
arose when Shannon told the officers that the gun was under the
mattress inside the motel room, and we hold that the search of Room
210 of the Jupiter Inn Motel was valid and the district court did
not err in denying Shannon's motion to suppress the fruits of the
search of Room 210 of the Jupiter Inn Motel.1
VOIR DIRE
The district court has broad discretion in conducting voir
dire, and the reviewing court will not overturn its decision
regarding impartiality absent a clear abuse of discretion. United
States v. Rodriguez, 993, F.2d 1170, 1176 (5th Cir. 1993). An
abuse of discretion will be found when there is insufficient
questioning to produce some basis for defense counsel to exercise
a reasonably knowledgeable right of challenge. Id.Shannon contends that he was deprived of a fair and impartial
1
We note that the facts also reveal the possibility that
Shannon consented to the search of the motel room. A search
conducted pursuant to valid consent is an exception to the Fourth
Amendment's warrant and probable cause requirements. Schneckloth
v. Bustamonte, 412 U.S. 218, 219, 93 S.Ct. 2041, 2043, 36 L.Ed.2d
854 (1973). Shannon's identification of the exact location of
the gun in the room may have led the officers to reasonably
believe in good faith that Shannon had consented to their entry
into the motel room and their seizure of the gun. See United
States v. De Leon-Reyna, 930 F.2d 396, 399 (5th Cir. 1991)
(noting that a search is valid if the officers' belief that they
had consent, in light of all the circumstances, was objectively
reasonable).
8
jury by the remarks of the district court judge in the presence of
the venire panel to Juror James Edward Crawford, Jr. (Crawford).
He argues that the remarks had a chilling effect on the candor of
the rest of the venire panel, so that they were unwilling to admit
to partiality and to answer honestly the questions posed by the
court during the rest of voir dire. Therefore, it was impossible
to gain the necessary information to intelligently exercise his
peremptory strikes.
After advising the venire panel of the charges against
Shannon, the district court asked if there was anyone who could not
serve as a fair and impartial juror. Crawford informed the court
that he had been a victim of two robberies and did not think that
was fair. He stated that he felt that any person who comes to
trial is guilty of something. In response, the court remarked:
Well, I don't think that is right and I didn't ask you
for that answer...That is an unfair thing for you to say.
If you can't serve you can't serve. You will report back
upstairs and I will let them know about you and you are
excused at this time but I admonish you if you answer a
question in another courtroom just answer the
question...And don't volunteer an answer.
Shannon did not object to the court's remarks to Crawford until
after the court finished its direct questioning of the panel, when
he requested the court to order a new venire panel. The district
court denied his request.
In United States v. Colabella,2 a case factually similar to
ours, the Second Circuit refused to speculate about possible jury
2
448 F.2d 1299 (2d Cir. 1971), cert. denied, 405 U.S. 929,
92 S.Ct. 981, 30 L.Ed.2d 803 (1972).
9
bias, holding that the district court's chastising remarks towards
several venirepersons who appeared to voice their bias in order to
get out of jury duty did not result in a violation of the
defendant's Sixth Amendment rights. Colabella, 448 F.2d at 1302-03.
The same reasoning applies in this case. We find that the court's
remarks in front of the venire panel to Crawford did not deprive
Shannon of a fair and impartial jury. Therefore, we hold that the
district court did not abuse its discretion in refusing Shannon's
request for a new venire panel.
COLLATERAL ATTACK OF PRIOR CONVICTION
The district court will ordinarily entertain a challenge to a
prior state conviction in a sentencing hearing if it does not
appear that the defendant has an alternative remedy through which
to challenge the conviction. United States v. Canales, 960 F.2d
1311, 1317 (5th Cir. 1992). However, even if it is determined that
the defendant does not have an avenue besides the sentencing
hearing or a subsequent proceeding pursuant to 28 U.S.C. § 2255,
the court may exercise its discretion to decide whether to hear a
challenge to the prior conviction. Id. Therefore, the standard of
review to be applied by the reviewing court is one of an abuse of
discretion.
Shannon contends that a 1987 state court conviction for
attempted burglary, which qualified him as a career offender under
the Sentencing Guidelines, was invalid because his guilty plea was
involuntary; the plea colloquy was inadequate; and exculpatory
evidence surfaced concerning Shannon. Shannon moved to invalidate
10
the 1987 conviction. Relying on this Court's opinion in United
States v. Canales,3 the district court declined to entertain the
collateral challenge to the 1987 conviction.
The district court's decision was based on its finding that
Shannon possessed alternative means for relief in state court;
notions of comity favored deferring to the state court; the alleged
invalidity was not apparent from the record and the challenge was
likely to be contested; and the names and availability of witnesses
were uncertain. In United States v. Canales this Court held:
Where the issue is contested and its resolution not
clearly apparent from the record, discretion should
normally be exercised by declining to consider the
challenge to a conviction by another court if the
defendant has available an alternative remedy (apart from
a later section 2255 proceeding in the then sentencing
court itself).
United States v. Canales, 960 F.2d at 1316. The district court's
finding that Shannon maintained the alternative remedy of filing
state habeas petition pursuant to Article 11.07 of the Texas Code
of Criminal Procedure was not clearly erroneous. Therefore, we
hold that the district court did not abuse its discretion in
disallowing Shannon's challenge to the 1987 state court conviction.
POSSESSION/USE OF FIREARM
Shannon contends that the Government failed to prove beyond a
reasonable doubt that he used a "dangerous weapon" in committing
Counts 1, 2, and 3. However, because Shannon failed to renew his
motion for judgment of acquittal at the close of the evidence, he
3
960 F.2d 1311, 1315 (5th Cir. 1992).
11
has waived any objection to the motion's denial. United States v.
Knezek, 964 F.2d 394, 399-400 (5th Cir. 1992). Therefore, the
standard of review is restricted to whether there has been a
"manifest miscarriage of justice." Id. Shannon's conviction may be
reversed only if "the record is 'devoid of evidence pointing to
guilt.'" United States v. Singer, 970 F.2d 1414, 1418 (5th Cir.
1992).
We have reviewed the evidence in this case. We find that
there is substantial evidence to support the conviction on Counts
1, 2, and 3. Having found no manifest miscarriage of justice, we
affirm Shannon's conviction on Counts 1, 2, and 3.
CONCLUSION
For the reasons stated above, the judgment of the district
court is affirmed.
12