United States v. Gravly , 340 F. App'x 67 ( 2009 )


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  •                                                                                                                            Opinions of the United
    2009 Decisions                                                                                                             States Court of Appeals
    for the Third Circuit
    7-2-2009
    USA v. Gravly
    Precedential or Non-Precedential: Non-Precedential
    Docket No. 04-4409
    Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2009
    Recommended Citation
    "USA v. Gravly" (2009). 2009 Decisions. Paper 1086.
    http://digitalcommons.law.villanova.edu/thirdcircuit_2009/1086
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    NOT PRECEDENTIAL
    UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT
    No. 04-4409
    UNITED STATES OF AMERICA
    v.
    DWUANE GRAVLEY,
    Appellant
    On Appeal from the United States District Court
    for the District of New Jersey
    (D.C. No. 02-642)
    District Judge: Honorable Anne E. Thompson
    Submitted Under Third Circuit LAR 34.1(a)
    March 6, 2009
    Before: SLOVITER and HARDIMAN, Circuit Judges, and POLLAK,* District Judge
    (Filed: July 2, 2009)
    _____
    OPINION
    ______
    *
    Hon. Louis H. Pollak, Senior Judge, United States District Court for the Eastern
    District of Pennsylvania, sitting by designation.
    -1-
    POLLAK, District Judge:
    Appellant Dwayne Gravley was convicted by a jury of each count of a 5-count
    indictment: (1) possession with intent to distribute crack cocaine, (2) discharging a
    firearm in relation to a drug trafficking crime, (3) carjacking, (4) discharging a firearm in
    relation to the carjacking, and (5) being a felon in possession of a firearm. On this
    appeal, Gravley raises several challenges to his conviction. First, he argues that the
    prosecutor’s conduct was sufficiently prejudicial to deprive him of his right to a fair trial.
    Second, he argues that evidence of his past criminal activity was improperly admitted.
    Third, he argues that his Sixth Amendment confrontation rights were violated when he
    was denied an opportunity to fully cross-examine two government witnesses. Finally, he
    argues that the District Court erred when it refused to instruct the jury on a necessity
    defense relating to the carjacking count.1
    I.
    The facts giving rise to Mr. Gravley’s arrest, taken in the light most favorable to
    the government as the verdict winner, see United States v. Hart, 
    273 F.3d 363
    , 371 (3d
    Cir. 2001), are as follows: On July 30, 2001, Gravley went, in a Ford Escape and
    accompanied by his cousin Frantel Joyius Heigh, to the home of Sabrina Mosley. Also
    1
    Gravley himself filed a supplemental brief raising issues not addressed by his
    attorney (with whom the record reflects he has not always been satisfied). On August 29,
    2008, this court denied Gravley’s motions to remove appellate counsel and for permission
    to file a pro se brief. The arguments not raised in the brief filed by Gravley’s counsel have
    not been considered by this court.
    -2-
    residing in the home were Mosley’s three minor sons and her brother, Fred. Gravley was
    looking for Fred Mosley, and Gravley was carrying an Uzi. Fred Mosley would not speak
    to Gravley, who then left with Heigh in the Escape. The Bridgeton Police Department
    was called, and Officer Michael Speranza and his partner arrived at the Mosley home to
    investigate. Officer Speranza was familiar with Gravley, and after speaking with the
    Mosleys the officers left in their marked police car to look for Gravley. They soon found
    the Ford Escape and began following it down the streets of Bridgeton. The officers
    signaled for the Escape to stop, but Heigh, the driver, did not. Gravley slid from the
    passenger’s seat over to the driver’s seat, stopped the Ford Escape, and exited through the
    driver’s side door. He then reached back into the car and grabbed the Uzi from Heigh.
    Gravley ran through a parking lot; while running, he still carried the Uzi, which was fired
    at least twice during the flight.
    After some time during which more officers joined the pursuit, Gravley ran into an
    intersection, where a Chrysler sedan was stopped at a red light. The sedan was occupied
    by Grace Gale, the driver; her husband, the passenger; and Gale’s two-year old son in the
    back seat. Gravley, still in possession of the Uzi, opened the driver’s door and pushed
    Gale towards the passenger side of the car. At that moment, additional officers
    converged on the intersection, surrounding the Chrysler. Gun shots were fired and the
    windshield of the car shattered, though it was disputed at trial whether the bullet that
    struck the glass came from inside the Chrysler or from the outside of the car. Gale
    -3-
    climbed into the backseat of the car, grabbed her son, and escaped out one of the rear
    doors. Several police officers approached the Chrysler and fired on Gravley as he
    attempted to take cover on the floor of the front seat of the car. Gravley was eventually
    pulled from the car and transported to Cooper University Hospital for treatment for
    multiple gunshot wounds. A subsequent search (pursuant to a warrant) of the Ford
    Escape yielded drug paraphernalia and a half-ounce of crack cocaine. The jury found
    Gravley guilty on all charges, and this appeal followed.
    II.
    A.
    Gravley’s first contention on this appeal is that his trial was impermissibly tainted
    by prosecutorial misconduct, and he points to several incidents during the trial to support
    this claim. Because Gravley objected to these incidents at the time they occurred, the
    District Court’s rulings on Gravley’s objections are reviewed in accordance with the
    harmless error principles set forth in United States v. Zehrbach, 
    47 F.3d 1252
    , 1265 (3d
    Cir. 1995) (en banc) (holding that prosecutorial misconduct amounting to
    non-constitutional error “is harmless when it is highly probable that the error did not
    contribute to the judgment”) (emphasis in original).
    The first incident involves comments about the trial made by the prosecutor during
    closing arguments. During the trial, the defense called Detective William Skull of the
    New Jersey State Police to testify. During Gravley’s attorney’s examination of the
    -4-
    witness, Gravley indicated that he wanted to ask further questions of the witness. Several
    sidebar conferences were held between the district judge, Gravley, and defense counsel.
    In her closing-argument-rebuttal after defense counsel’s closing argument, the prosecutor
    referred to this dispute, saying that the defendant “thinks that he’s even smarter than his
    own defense attorney.” S. App’x at 1160-61. Gravley’s contention that this comment
    crossed the line is without merit–the comment was an isolated comment made in the
    course of the prosecutor’s recounting the government’s theory of the case. The
    prosecutor argued the case aggressively but did not invite the jury to reach a verdict based
    on anything other than the evidence.
    Gravley also testified, and he argues that the prosecutor’s questions to him on
    cross-examination were impermissible because he was asked to compare his version of
    events with the testimony of other witnesses. Gravley’s counsel objected to these
    questions, and the objections were sustained in large part by the District Court, who
    permitted the government to question Gravley about what happened and whether he had
    heard the testimony of other witnesses, but did not permit the government to ask Gravley
    to comment on the testimony of other witnesses. The District Court explicitly directed
    the prosecutor to “not have one witness evaluate another witness’ testimony.” S. App’x
    at 839; see also S. App’x at 845, 851.
    After the trial in this case, this court held in United States v. Harris, 
    471 F.3d 507
    ,
    512 (3d Cir. 2006) that “asking one witness whether another is lying is inappropriate.”
    -5-
    The court in Harris also held that allowing the line of question in that case was not “plain
    error” because the circuit had not previously ruled on the issue. 
    Id.
     In light of the District
    Court’s actions in the case at bar–the correct anticipation of Harris and the sustaining of
    Gravley’s objections–and the subsequent clarification of what questions might
    permissibly be put to one witness concerning the testimony of another, the prosecutor’s
    questioning here was not misconduct.
    B.
    Gravley’s second main contention on appeal is that the District Court improperly
    admitted evidence of other crimes in violation of Rule 404(b). The District Court
    permitted the prosecutor, on cross-examination, to question Gravley about a 2001 arrest
    for possession of controlled substances with the intent to distribute them, after Gravley
    testified on direct that he had no involvement in drug activity, had never seen the drugs or
    paraphernalia found in the Ford Escape before, and that the drugs and paraphernalia
    belonged to Heigh, the passenger. The District Court properly admitted the evidence
    under Rule 404(b), limiting the questions to only the fact and the nature of the charge.2
    United States v. Givan, 
    320 F.3d 452
    , 460-61 (3d Cir. 2003) (evidence of prior conviction
    2
    The prosecutor did improperly compare the drugs associated with the 2001 arrest
    with the drugs found in the Escape in this case; however, the District Court struck that
    remark from the record. S. App’x at 871. The jury is presumed to have followed the
    instructions not to consider the statements of counsel as evidence, S. App’x at 1022, as well
    as the instructions to consider the evidence only with regard to Gravley’s knowledge and
    intent concerning drugs, S. App’x at 1074-75. See United States v. Givan, 
    320 F.3d 452
    ,
    460-61 (3d Cir. 2003) (citing United States v. Gilsenan, 
    949 F.2d 90
    , 96 (3d Cir. 1991).
    -6-
    for felony drug offense properly admitted to show knowledge and rebut defense of
    “innocent association” with drugs found in car in which defendant was a passenger);
    United States v. Boone, 
    279 F.3d 163
    , 187 (3d Cir. 2002) (in drug case, introduction of
    evidence of prior drug trafficking permissible to refute defense of ignorance).
    C.
    Next, Gravley argues that his Sixth Amendment right to confront the witnesses
    against him was violated when a recorded statement from Heigh was used against him;
    Heigh did not testify, apparently because the government could not locate her. She had
    given the police a statement after the events of July 30, 2001 were concluded, and the
    government used information from this statement to formulate questions put to Gravley
    on cross-examination. When Gravley objected to the questions, the government said, in
    front of the jury, that Heigh’s statement provided the basis for the questions. Gravley also
    contends that the use of Heigh’s statement in this way constituted inadmissible hearsay.
    Heigh’s statement was not admitted, and at the close of Gravley’s testimony the
    District Court instructed the jury not to consider the content of Heigh’s statement:
    Now, there was no testimony from Ms. Heigh under oath in this courtroom;
    you understand that. The questions were directed to the witness from some
    statements purportedly given by Ms. Heigh to law enforcement, but those
    statements are hearsay. She never testified here in open court under oath,
    so, ladies and gentlemen, you cannot consider that testimony as substantive
    testimony.
    S. App’x at 877.
    An out-of-court statement from a witness that is testimonial is barred by the
    -7-
    Confrontation Clause unless the witness is unavailable and the defendant has had a prior
    opportunity for cross-examination. Crawford v. Washington, 
    541 U.S. 36
     (2004).
    Heigh’s statement appears to be a statement taken by a police officer in the course of an
    investigation, and this court assumes that it was testimonial in nature and that its
    admission might appear to run afoul of Gravley’s confrontation rights. United States v.
    Trala, 
    386 F.3d 536
    , 544 (2004) (vacated 
    546 U.S. 1086
     (2006) (remanded for
    resentencing in light of United States v. Booker)).
    Gravley argues that the prosecutor’s questions based on Heigh’s statement
    “injected Heigh’s recorded statement into the trial.” However, Heigh did not testify and
    her statement was not admitted. There was therefore no violation of Gravley’s
    confrontation rights. Moreover, any prejudice that might have resulted from the
    government’s reference to Heigh’s statement was rectified by the District Court’s
    instruction not to consider the substance of the statement.
    The government was required to have a good-faith basis for the questions posed to
    Gravley, and Heigh’s statement provided that basis. We find no abuse of discretion in the
    District Court’s ruling. See also United States v. Cudlitz, 
    72 F.3d 992
    , 1001 (1st Cir.
    1996) (noting that a district judge “enjoys wide latitude in deciding whether a good faith
    basis exists”).
    D.
    Gravley’s next set of arguments concerns the testimony of government witness
    -8-
    Kamesha Bessix. The government turned over to defense counsel a copy of Bessix’s
    criminal history extract in advance of the cross-examination. Then, during the cross-
    examination, there was some debate about whether a prior conviction was a felony for
    which she could be impeached. The District Court told defense counsel that he could
    further investigate the issue and recall Bessix if necessary. S. App’x at 360. A further
    review of Bessix’s criminal history revealed that she was previously convicted of an
    impeachable offense. S. App’x at 642.
    However, when defense counsel decided that he would recall Bessix, he could not
    locate her. S. App’x at 771. The District Court, concerned about delaying the trial,
    inquired as to what questions would be asked of the witness and ruled that defense
    counsel’s proposed lines of questioning about collateral matters, including her current
    employment and whether she had ever testified before, were irrelevant and would not be
    admitted. That ruling is not being challenged. Instead of waiting for Bessix to be
    brought in, the court permitted the introduction of the evidence of the felony conviction
    without Bessix retaking the stand, and a stipulation was read to the jury.
    Gravley now argues that the District Court’s refusal to hold the trial open to permit
    him to recall Bessix denied him his right to fully cross-examine a witness who had
    presented testimony against him. However, Gravley had a full opportunity to question
    Bessix when she first testified, and at the time she initially testified Gravley’s counsel
    could have asked about all of the topics for which he sought to re-call her. See, e.g.,
    -9-
    United States v. Kenny, 
    462 F.2d 1205
    , 1226 (3d Cir. 1972) (affirming a district court’s
    decision to refuse to recall a witness for further cross-examination where “[t]he
    documents upon which this cross examination was proposed to be based were available to
    counsel at the time of the original cross examination”). Gravley’s argument implicitly
    challenges both the District Court’s decision not to grant a continuance to locate Bessix
    and not to permit additional cross-examination of Bessix; both decisions lie within the
    discretion of the District Court. See United States v. Khorozian, 
    333 F.3d 498
    , 507 (3d
    Cir. 2003) (reviewing refusal to grant a continuance for abuse of discretion); United
    States v. Messare, 
    405 F.3d 161
    , 169 (3d Cir. 2005) (reviewing limitations placed on
    cross-examination for abuse of discretion). Though defense counsel’s impeachment of
    Bessix might have been more effective had he asked about her prior conviction during
    live testimony, the District Court did not abuse its discretion in refusing to permit a delay
    of unknown length in order to adduce a fact that could be entered into evidence through a
    stipulation. Gravley’s right to cross-examination was not violated by the District Court’s
    rulings regarding Bessix.
    E.
    Finally, Gravley argues that the District Court erred when it refused to instruct the
    jury on necessity or duress relating to the carjacking. He contends, and he testified at
    trial, that his entry into the Gales’ vehicle was only an attempt to seek refuge from the
    police, who he believed were going to kill him. The District Court disagreed and, finding
    -10-
    “no reasonable basis” in Gravley’s testimony for the requested instruction, refused to
    instruct the jury on duress. S. App’x 962-70.
    To be entitled to an instruction on duress, a defendant must show that he had: (1)
    an immediate threat of death or serious bodily injury; (2) a well-grounded fear that the
    threat would be carried out; (3) no reasonable opportunity to escape the threatened harm;
    and (4) not recklessly placed himself in a situation in which he would be forced to engage
    in criminal conduct. See United States v. Miller, 
    59 F.3d 417
    , 422 (3d Cir. 1995); United
    States v. Paolello, 
    951 F.2d 537
    , 541 (3d Cir. 1991). The District Court properly
    determined that the elements of duress were not met. If Gravley indeed had a well-
    grounded fear and sought safety, there were clear alternatives to carjacking the Gales–he
    could have gone into one of the other buildings he passed on his path from the Ford
    Escape to the Gales’ car or simply surrendered to police. Moreover, Gravley had placed
    himself in a dangerous situation necessitating refuge in the first place. The District Court
    did not err in denying the request for the instruction.
    III.
    For the foregoing reasons, the judgment of the District Court will be affirmed.
    -11-