United States v. DeRico Williamson , 483 F. App'x 139 ( 2012 )

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 12a0555n.06
No. 10-6174
UNITED STATES COURT OF APPEALS FILED
FOR THE SIXTH CIRCUIT May 30, 2012
LEONARD GREEN, Clerk
UNITED STATES OF AMERICA, )
)
Plaintiff-Appellee, ) ON APPEAL FROM THE UNITED
) STATES DISTRICT COURT FOR
v. ) THE WESTERN DISTRICT OF
) TENNESSEE
DERICO WILLIAMSON )
)
Defendant-Appellant. )
Before: CLAY and KETHLEDGE, Circuit Judges, DOW, District Judge.*
DOW, District Judge. A jury convicted DeRico Williamson of possessing a firearm as a
felon in violation of 18 U.S.C. § 922(g). Williamson appeals that conviction, arguing that (1) there
was insufficient evidence to convict him; (2) the district court erred in allowing certain testimony
over his objections; and (3) the prosecutors committed a discovery violation. We affirm.
I.
On August 6, 2008, officers with the Memphis Police Department observed Williamson
engage in a hand-to-hand drug transaction with another man. As officers approached the two men,
Williamson fled, ducking into an apartment about ten or fifteen feet away. As he pursued
Williamson, one of the officers, Detective Star Handley, saw that Williamson was holding something
*
The Honorable Robert M. Dow Jr., United States District Judge for the Northern District of
Illinois, sitting by designation.
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United States v. Williamson
in his left hand and clutching his right side. As Williamson entered the apartment, he threw down
two baggies of marijuana with his left hand, ran through the living room, and then continued up a
flight of stairs. Detective Handley slowed down to retrieve the baggies, and then paused as
Williamson was reaching the top of the stairs. At that point, Williamson took a black object from
his right side and threw it, making a loud “thud,” and then hid in a bathroom at the top of the stairs.
Upon searching the upstairs of the apartment, Detective Handley found a loaded black pistol in an
open closet of a child’s bedroom, which was the only room with an open door at the top of the stairs.
Williamson was apprehended in the bathroom and arrested.
A federal grand jury indicted Williamson on one count of being a felon in possession of a
firearm, in violation of 18 U.S.C. § 922(g), and one count of possession of marijuana with intent to
distribute, in violation of 21 U.S.C. § 841(a)(1). After the district court dismissed the marijuana
count on the government’s motion, the case proceeded to trial on the felon-in-possession count.
During discovery, Williamson’s counsel requested from the government copies of any written
statements that Williamson made while in custody. In its discovery letter, the government stated that
it “enclosed a copy of the arrest ticket and affidavit of complaint which reflect any oral statements
made by your client,” and included in its list of physical evidence a “Rights Waiver Form.” The
letter also made clear that Williamson’s counsel could inspect the originals and/or make copies of
the evidence if she desired.
After Williamson was arrested and read his rights, he completed the Rights Waiver Form that
was standard in the district. Williamson signed the front page of the form, indicating that he waived
his rights and that he wished to answer questions at that time. In his answers recorded on the back
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of the form, Williamson denied possessing the pistol, denied having any knowledge about the pistol,
and answered, “yes, by you” in response to the question, “Have you been treated fairly?” In its
discovery package, the government included a copy of the front side of this rights waiver form, but
neglected to copy and provide defense counsel with the back side, which contained Williamson’s
written statement.
At trial, the government called several officers, including Detective Handley. Detective
Handley testified that during the chase, he saw Williamson throw a black object with his right hand,
and that when it landed, it made “a thum[p]ing sound.” Although Detective Handley admitted that
he could not identify the object that Williamson threw, he stated that the location of the black
pistol—an open closet in a bedroom just to the right of the top of the stairs—was consistent with the
throwing motion that he saw Williamson make. Detective Handley also testified that there were no
obstructions between where Williamson was standing at the top of the stairs and the closet where
he found the pistol. The government also called a fingerprint expert, who testified that she tested
the pistol in question for fingerprints, and that Williamson’s prints were not on it.
Williamson’s primary witness was his sister, Kanisha Williamson. Kanisha testified that she
used to live at the apartment where Williamson was arrested, and that she was present during the
arrest. According to Kanisha, the pistol in question belonged to her on-again, off-again boyfriend,
Carlos Clear, who had been staying with her at the time of Williamson’s arrest. Kanisha testified
that Detective Handley found the pistol in a plastic storage bin that was filled with Clear’s clothing,
not in the closet on the floor. Kanisha also testified that when the officers arrested her brother, “they
handcuffed him and pulled him by his dreads down the steps.”
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On cross examination, Kanisha made numerous incorrect statements about the number and
location of closets within the bedroom at the top of the stairs. She also testified that she did not tell
anyone—including Williamson’s counsel or the government agents who interviewed her—that the
pistol belonged to Clear until a month before trial, when, at Williamson’s request, she wrote a
statement to that effect and sent it to Williamson in prison. She also admitted that at the time of trial,
Clear was deceased and could not contradict her testimony that the pistol belonged to Clear, and not
her brother.
The government called two witnesses in rebuttal. The government first asked Officer
Brandon Champagne, the case agent on Williamson’s case, whether, based on his observation of the
scene, it would be possible to throw a gun from the hallway at the top of the stairs to the inside of
the closet where the gun was found. Williamson’s counsel objected to the basis of Officer
Champagne’s knowledge, but the Court overruled the objection, concluding that the testimony was
admissible under Federal Rule of Evidence 701. Officer Champagne then testified that, “In my
opinion . . . a gun could have been very easily tossed into this closet.”
The government then recalled Detective Handley to rebut Kanisha’s testimony that the
officers had pulled Williamson down the stairs by his hair. To do so, the government sought to show
Detective Handley the back page of the rights waiver form where Williamson indicated that he had
been treated fairly by the police. Williamson’s counsel objected, arguing that the government had
not disclosed this document or informed her of Williamson’s statement prior to Detective Handley’s
rebuttal testimony. Williamson’s counsel admitted that the rights waiver form was the “usual” form,
but argued that during discovery, the government had only produced a copy of the front of the form.
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Williamson’s counsel was given an opportunity to read the back of the form, stated that she did not
“necessarily object” to the use of the document itself, but then objected that Williamson’s statement
was not relevant to whether there was a scuffle between Williamson and the arresting officers. The
district court overruled the objection, and allowed the government to use the statement only for the
purpose of asking Detective Handley what Williamson’s answer was when he was asked if he was
treated fairly. Detective Handley replied, “[O]n the rear page, he was asked have you been treated
fairly, and he answered yes and then initialed next to it.” The document was not admitted into
evidence. The jury convicted Williamson of one count of being a felon in possession of a firearm,
in violation of 18 U.S.C. § 922(g).
Williamson then moved for a new trial, arguing that the government’s failure to turn over the
back page of the rights waiver form violated the rule articulated in Brady v. Maryland, 373 U.S. 83(1963). The district court denied Williamson’s motion, and sentenced him to 120 months in prison.
This appeal followed.
II.
A.
Williamson first argues that the evidence presented at trial was insufficient to convict him
of being a felon in possession of a firearm. In determining whether the evidence is sufficient to
support a criminal conviction, we consider “whether, after viewing the evidence in the light most
favorable to the prosecution, any rational trier of fact could have found the essential elements of the
crime beyond a reasonable doubt.” United States v. Russell, 595 F.3d 633, 644 (6th Cir. 2010)
(internal quotations, citations, and emphasis omitted). Where, as here, the defendant failed to renew
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his Rule 29 motion for acquittal at the close of all the evidence, our review is limited to a
determination of whether there was a “manifest miscarriage of justice.” United States v. Childs, 539
F.3d 552, 558 (6th Cir. 2008) (internal quotations and citations omitted). Such a miscarriage of
justice only occurs if “the record is devoid of evidence pointing to guilt.” Id.The government presented ample evidence at trial to sustain the jury’s verdict. Detective
Handley testified that he saw Williamson clutching an object to his right side as he ran from the
officers. He then saw Williamson pull a black object from his right side, and throw it, making a
thud. When the officers arrested Williamson, they found a black, loaded pistol in an open closet in
a child’s room, a few feet away from where he had thrown the black object. Detective Handley
testified that the location of the pistol was consistent with the direction that Williamson had thrown
the object, and that there were no obstructions between where Williamson was standing at the top
of the stairwell and the closet where the pistol was found. Finally, Officer Champagne testified that
“a gun could have been very easily tossed into [the] closet” from the top of the stairway.
Williamson argues that the physical evidence contradicts the officers’ testimony; that it was
unlikely, if not impossible, to throw a pistol from the hallway at the top of the stairs, around the
closet door, and into the closet, especially if it made only one “thump.” The jury, however, “had the
advantage of viewing photographs of the scene, it had the opportunity to assess the scene of the
arrest and make an informed judgment about the Government’s theory of the case.” United States
v. Daniels, 170 F. App’x 409, 413 (6th Cir. 2006) (internal citation omitted). Because a rational trier
of fact could have come to the conclusion that Williamson possessed the pistol that Detective
Handley found in the closet, we conclude that the evidence was sufficient to support his conviction.
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See, e.g., United States v. Barnett, 398 F.3d 516, 522 (6th Cir. 2005) (rejecting the defendant’s
sufficiency challenge where an officer testified that he saw the defendant holding a long black object
that looked like a shotgun, saw the defendant throw the object to the ground as he began running and,
upon searching the scene, another officer found a black rifle in the same area); United States v.
Moore, 208 F.3d 411, 413 (2d Cir. 2000) (finding sufficient evidence of possession where officers
testified that they saw the defendant moments earlier with a large black and silver handgun and, after
a brief chase, found that same gun in a closet a few feet from where they arrested the defendant);
Daniels, 170 F. App’x at 412–13 (concluding that there was sufficient evidence to support a
felon-in-possession conviction where an officer testified that he observed the defendant pull at
something silver with his right hand and throw it to the ground and, shortly thereafter, another officer
found a pistol in that same area). Accordingly, Williamson’s sufficiency argument is without merit.
B.
Williamson next argues that the district court should have excluded Officer Champagne’s
testimony because it was improper lay opinion testimony. We review a district court’s evidentiary
rulings for an abuse of discretion, and will reverse “only where the district court’s erroneous
admission of evidence affects a substantial right of the party.” United States v. White, 492 F.3d 380,
398 (6th Cir. 2007) (citing Fed. R. Evid. 103(a)).
Pursuant to Federal Rule of Evidence 701, a lay witness may provide opinion testimony if
it is (1) rationally based on his or her perception; (2) helpful to clearly understanding his or her
testimony or to determining a fact in issue; and (3) not based on scientific, technical, or other
specialized knowledge that lies within the scope of Federal Rule of Evidence 702. Williamson does
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not contest the fact that Officer Champagne’s testimony was helpful to determining whether
Williamson could have thrown the pistol from the stairway to where it was found in the open closet.
Instead, Williamson argues that Officer Champagne’s opinion that “a gun could have been very
easily tossed” from the top of the stairs to the inside of the closet was not rationally based on his
perception and was based on scientific, technical, or other specialized knowledge.
We disagree. First, Officer Champagne testified that about a week before the trial began, he
went to the apartment where officers arrested Williamson, studied the area around the stairway and
the closet, and took pictures of the scene. His opinion testimony was based on what he rationally
perceived at the apartment. Notably, aside from the use of the phrase “very easily,” Officer
Champagne’s testimony was no different from the testimony of Detective Handley, who stated that
there were no obstacles between the stairway and where he found the pistol in the closet.
Furthermore, the fact that Officer Champagne used the phrase “very easily” does not take his
lay opinion into the realm of probability and physics, as Williamson argues. Lay testimony is
testimony that “results from a process of reasoning familiar in everday life, whereas an expert’s
testimony results from a process of reasoning which can be mastered only by specialists in the field.”
White, 492 F.3d at 401 (internal citations and quotations omitted). Officer Champagne’s testimony
that it would be easy to throw an object from one place to another “results from a process of
reasoning familiar in everyday life.” Id. It is an observation that anyone could make after studying
the rooms at issue. Officer Champagne’s lay opinion was not technical, nor did it involve any
specialized skill or expertise. He was merely asserting that, based on the layout of the apartment,
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which he had personally observed, he believed that it could be done, and done without much effort.
His opinion was proper lay testimony.
In any event, even if we were to determine that the district court erred in allowing Officer
Champagne to testify as to his opinion, any error did not affect Williamson’s substantial rights. In
addition to Officer Champagne’s testimony, the jury also heard testimony from Detective Handley
that he found the pistol in a location that was consistent with the direction that Williamson had
thrown the black object and that there were no obstructions between where Williamson was standing
at the top of the stairwell and the inside of the closet. That evidence was sufficient for the jury to
conclude that it was possible for Williamson to throw the pistol from the hallway at the top of the
stairs to the inside of the closet. Accordingly, we reject Williamson’s challenge to Officer
Champagne’s testimony.
C.
Finally, Williamson challenges the government’s use at trial of the back side of the rights
waiver form at trial. First, Williamson contends that the district court erred when it allowed the
government to introduce Williamson’s statement about how he was treated to rebut Kanisha’s
testimony that officers dragged Williamson down the stairs by his hair. Williamson argues (1) that
how Williamson was treated by arresting officers is not relevant to whether he possessed the firearm,
and (2) that the actual statement that Williamson made, indicating that he was treated fairly by the
processing officer at the police station, does not rebut Kanisha’s testimony that the arresting officers
mistreated her brother.
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Federal Rule of Evidence 401 defines “relevant evidence” as “evidence having any tendency
to make the existence of any fact that is of consequence to the determination of the action more
probable or less probable than it would be without the evidence.” “Because a timely objection was
made on the basis of relevance, we review the district court’s ruling using the abuse-of-discretion
standard.” United States v. Newsom, 452 F.3d 593, 601 (6th Cir. 2006). An abuse of discretion
exists “when the ruling court is firmly convinced that a mistake has been made.” Morales v. Am.
Honda Motor Co., Inc., 151 F.3d 500, 516 (6th Cir. 1998).
As an initial matter, we agree with Williamson that how the arresting officers treated him
does not make it more or less probable that he possessed the pistol found at the scene. But once the
defense introduced Kanisha’s testimony that the officers pulled Williamson down the stairs by his
hair, the government was well within its rights to rebut that testimony with the statement that
Williamson made immediately after his arrest. After Kanisha testified as to Williamson’s treatment,
Williamson’s statement was relevant, both to rebut that specific statement and to raise doubts about
Kanisha’s general credibility.
As to Williamson’s argument that his full statement, “yes, by you,” is not actually
impeaching because the “by you” refers to the officers interrogating him, not to the arresting officers,
Williamson had the opportunity to make his point during cross examination. By that time,
Williamson’s counsel had been given an opportunity to review the back page of the rights waiver
form, and counsel was aware of the full statement that Williamson made at the police station.
Indeed, the record reflects that she sought to clarify who Williamson believed had treated him fairly
when she asked Detective Handley which officer’s name was on the rights waiver form.
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Moreover, even assuming that the district court abused its discretion when it allowed the
testimony at issue, any error was harmless. See Newsom, 452 F.3d at 602. As Williamson admits,
how the arresting officers took him down the stairs after he was arrested, or whether he fought with
the officers, is not relevant to the ultimate issue in the case—whether he possessed the pistol.
Further, if the jurors chose to believe the officers’ testimony over the testimony of Kanisha, it was
likely because they discredited her testimony for other reasons—like the fact that she confused the
layout and number of closets in her child’s bedroom, or the fact that she failed to tell anyone,
including government agents, that the gun belonged to her boyfriend until Williamson asked her to,
and Clear had passed away and thus could not dispute it.
Nor does the government’s failure to disclose before trial the back page of the rights waiver
form require reversal in this case. Williamson argues that the government’s failure to copy and
disclose the back page of the form was a violation of its obligation under Federal Rule of Criminal
Procedure 16.1 In relevant part, Rule 16 requires that, upon a defendant’s request, the government
1
At oral argument, Williamson’s counsel withdrew her argument that the government’s
failure to disclose the back page of the rights waiver form violated Brady v. Maryland, 373 U.S. 83(1963), and for good reason. To establish a claim under Brady, Williamson must prove that “the
Government suppressed evidence, that such evidence was favorable to the defense, and that the
suppressed evidence was material.” United States v. Graham, 484 F.3d 413, 417 (6th Cir. 2007).
The district court properly concluded when ruling on Williamson’s motion for a new trial that
Williamson’s own statement did not constitute Brady material because he knew about the statement.
See Henness v. Bagley, 644 F.3d 308, 325 (6th Cir. 2011) (finding no Brady violation where the
defendant “already knew of his own contact with the police at the time of trial”); United States v.
Edgecombe, 107 F. App’x 532, 541 (6th Cir. 2004) (“The government’s Brady disclosure obligation
does not apply when the defendant knew or should have known the essential facts permitting him
to take advantage of the exculpatory information at issue.”). Even assuming that the government
negligently suppressed evidence that was favorable to Williamson, however, he cannot show that
the suppressed evidence was material. See United States v. Agurs, 427 U.S. 97, 112 n.20 (1976)
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disclose to the defendant, and make available for inspection, copying, or photographing: (1) any
relevant written statements made by the defendant if the statement is within the government’s
possession, custody, or control; and the attorney for the government knows—or through due
diligence could know—that the statement exists; and (2) the portion of “any written record
containing the substance of any relevant oral statement made before or after arrest if the defendant
made the statement in response to interrogation by a person the defendant knew was a government
agent.” Fed. R. Crim. P. 16(a)(1)(B)(i)-(ii). Because Williamson did not raise this issue below, we
review it only for plain error. United States v. Faulkenberry, 614 F.3d 573, 590 (6th Cir. 2010); Fed.
R. Crim. P. 52(b) (“A plain error that affects substantial rights may be considered even though it was
not brought to the court’s attention.”).
Here, there is no doubt that the government disclosed that there was a rights waiver form in
evidence in this case, that Williamson’s counsel knew that the typical rights waiver form contained
both a front and back side, and that the government made the entire form available for inspection or
copying. The question is whether, in light of those facts, the government’s negligence in copying
the form itself—and providing incomplete and potentially misleading information in its discovery
letter—is a violation of Rule 16. We need not definitively resolve that question, however, because
any violation of Rule 16 did not affect Williamson’s substantial rights. See United States v.
Carradine, 621 F.3d 575, 579 (6th Cir. 2010) (stating that we may correct an error not raised at trial
only where the appellant demonstrates that the error affected the appellant’s substantial rights, which
(holding that the government’s obligations under Brady do not extend to evidence that affects a
defendant’s ability to prepare for trial).
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in the ordinary case means it affected the outcome of the district court proceedings) (internal citation
omitted).
Williamson argues that if his counsel had the full rights waiver form before trial, the outcome
of the trial would have been altered for two reasons. First, he contends that he would have been able
to rebut the government’s contention that, shortly before trial, he talked his sister into lying on his
behalf about whose gun was in her apartment. With the back side of the rights waiver form
itself—not just his bald assertion—Williamson claims he could have demonstrated that it was his
position all along that he had not possessed the pistol. Second, Williamson argues that if his counsel
had his written statement before trial, she may have prepared differently, and may even have
encouraged him to testify at trial.
Williamson’s arguments are flawed for a number of reasons, chief among them the fact that
it was Williamson himself who made the statements that were negligently withheld. Further, it was
always Williamson’s position that he had never possessed the pistol found in the apartment—the jury
knew that based on his “not guilty” plea—and all that the back side of the rights waiver form only
corroborates his assertion. Finally, Williamson’s contention that he would have prepared for trial
differently, and may have testified had he known about the back page of the form, is too speculative
to warrant a new trial. See United States v. Clark, 385 F.3d 609, 620 (6th Cir. 2004) (concluding
that the defendant suffered no prejudice from the late disclosure of agent notes because, among other
things, the defendant’s claim that without the notes he could not make an informed decision to enter
a guilty plea was “simply too speculative to justify a new trial”). For these reasons, we conclude that
there is no cause to disturb the verdict against Williamson because any error that may have occurred
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in regard to the rights waiver form was harmless and could not have affected Williamson’s
substantial rights.
The district court’s judgment is affirmed.
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