Thursday, September 9, 2010

United States v. Miller[1]

Opinion handed down September 9, 2010
Link to Eighth Circuit Opinion

The United States Court of Appeals for the Eighth Circuit reversed a conviction for felony possession of a firearm. The court found that the trial court had abused its discretion by allowing the prosecution to misstate the burden of proof needed to find the defendant guilty. The case was reversed and remanded.

I. Facts and Holding

Defendant Zachary Miller and another man attempted to exit a parking lot in a vehicle after they spotted the Kansas City police patrolling the high-crime area.[2] However, the defendants found their route blocked by an obstacle, and Miller fled on foot.[3] During the ensuing chase, Miller reached into his waistband and threw away an object.[4] Officer Smith stated that the item looked like a gun and sounded like “a piece of metal hitting the ground”[5] but acknowledged later that he didn’t know for a fact that “it was a gun.”[6] After Miller was apprehended, other officers arrived and found a rusty semi-automatic pistol[7] and magazine about 40 to 45 feet from where Smith said he had seen Miller toss the gun.[8]

Although police had left instructions that the gun should be tested for DNA and fingerprints, the police lab technician test-fired the weapon before testing it for either DNA or fingerprints.[9] The lab technician also did not wear gloves before handing the weapon.[10]

A. Trial Testimony

During the trial, Miller testified that he had bought a quarter-gram of cocaine and hid it in a metal smoking pipe that he had in his pocket.[11] When he noticed the police patrolling the area, he decided to run because he was on parole for drug possession and passing a bad check and was afraid of authorities because of his “parole status.”[12] Miller testified that he dropped a bag of marijuana during the chase and threw away the smoking pipe.[13] Police, however, did not find any drugs or smoking pipe in the area.[14] Miller also told police he did not possess or handle any gun, so neither his fingerprints nor DNA would be found on any firearm that was found in the area.[15]

A lab technician, who tested the gun for DNA, found at least four different genetic profiles, but none matched Miller’s.[16] The technician concluded that it was “probable” that if Miller had handled the weapon, his DNA would have been found.[17] However, another government expert testified that it was “possible” for Miller to handle the weapon without leaving any traces of DNA.[18]

B. Trial Maneuvering

During the trial, Miller attempted to demonstrate that police were biased against him by showing they cooperated with the prosecution, yet they neither offered nor gave any help to the defense.[19] However, Miller’s attempt to show bias was thwarted when the trial court sustained objections to Miller’s questions to police, such as, “Is it fair to say, based on your cooperation, and lack of cooperation, that your interest is to help the government in this case?”[20] The trial court informed Miller that it would continue to sustain objections to that type of question; however, the trial court added that it would allow “factual questions.”[21]

Miller also argued that it was prosecutorial misconduct to use “thunk” in describing the sound of Miller’s unknown object hitting the ground, because no one had testified to the sound.[22] During testimony, Smith simply stated that the object sounded like a “firearm hitting the ground.”[23]

C. Burden of Proof

During trial testimony, the prosecution asked Smith if he thought officers were lying on the stand.[24] The defense counsel objected to this question because it “distorted” the government’s burden of proof by implying that in order to acquit Miller, the jury had to believe police were lying.[25] Although the prosecution rephrased the question, it used the same strategy during closing arguments.[26] At closing, the defense counsel stated that it was possible to believe both Miller and Smith’s testimony and conclude that Miller did not possess a gun: “It’s not a he said/he said credibility contest. You can believe both of those people . . . . you don’t have to find that Officer Smith was lying.”[27]

But in its rebuttal argument, the prosecution suggested that the jury had to conclude that Smith was lying in order to find that Miller did not possess a gun: “[I]f you acquit the defendant, you have to think that Officer Smith made a huge mistake, and you have to wonder what his motivation was for making that mistake.”[28] Miller’s objection to the prosecution’s closing argument was overruled, and he was found guilty and sentenced to fifty-seven months in prison.[39]

II. Legal Background

Miller appealed on four bases: (1) the court abused its discretion by allowing the prosecution to misstate the burden of proof necessary to acquit Miller of unlawful possession of a weapon; (2) the court abused its discretion when it allowed the prosecution to use “thunk” to describe the noise of Miller’s discarded object when it hit the ground; (3) the court erred when it sustained the prosecution’s objection to a defense strategy that was meant to show police bias; and (4) the prosecution failed to put on enough evidence to convict Miller.[30]

A. Standard of Proof

The Eighth Circuit focused its attention on Miller’s first contention that the trial court abused its discretion when it allowed the prosecution to imply that the jury had to believe that Smith was lying in order to acquit Miller.[31] The standard for reviewing statements made in closing arguments is found in United States v. Eldridge, and the trial court is granted broad discretion.[32] However, if the prosecution acts improperly, the reviewing court will reverse error “‘only if it seriously affects the fairness, integrity, or public reputation of judicial proceedings.’”[33] The Eighth Circuit has stated that generally a reversal is granted when “the verdict could reasonably have been affected by the alleged misconduct.”[34]

B. Discussion

The prosecution defended its closing arguments tactics by stating that Smith’s “credibility” had been challenged and that it was simply asserting that Smith was telling the truth.[35] The Eighth Circuit, however, dismissed the prosecution’s explanations because Miller had not questioned Smith’s credibility; in fact, Miller stated that he did “not believe Officer Smith lied during his testimony.”[36] Because Miller did not challenge Smith’s character, the prosecution’s closing argument was deemed improper.[37]

The Eighth Circuit also found that the trial court failed to give “curative instruction” to the jury to mitigate the impact of the prosecution’s comments.[38] In a similar case, a “curative instruction” and the strength of the prosecution’s case were key to finding that that the trial court did not abuse its discretion.[39]

After finding that the prosecution made improper comments and that the trial court failed to mitigate the effects of the comments, the Eighth Circuit considered the cumulative effect of these comments on the jury.[40] Additionally, the court found that the timing of the prosecution’s comments were prejudicial because they occurred during the prosecution’s rebuttal comments when Miller did not have a chance to respond except by making an objection.[41] However, because the objection was overruled “almost immediately before the case was submitted to the jury,” the jury was likely to have been affected by the prosecution’s closing comments.[42]

The Eighth Circuit next considered whether the prosecution’s improper argument would have much effect on this particular case.[43] If the prosecution’s case was strong, then improper comments would be less likely to affect the outcome of the case.[44] The Eighth Circuit found that the government’s case was not “overwhelming,” noting that Smith was the only witness and that the case turned on Smith’s testimony, “making the improper comments potentially prejudicial.”[45]

The court also briefly addressed evidentiary issues.[46] The Eighth Circuit found that Miller failed to object to the prosecution’s use of “thunk” to describe the sound of the unknown item hitting the ground when no witnesses used that word to describe the sound.[47] The court noted that Miller used that same word in his closing argument and found no error by the trial court.[48] The Eighth Circuit also found no error when the trial court limited Miller’s cross-examination of the investigators.[49] The court found that “the limitation did not preclude defense counsel from challenging the witnesses’ credibility – nor did it prevent Miller from arguing bias in his closing.”[50]

Ultimately, the Eighth Circuit reversed and remanded the case, finding that it did not need to consider whether a hypothetical jury would have found for the prosecution.[51]

III. Comment

United States v. Miller is an example in which both the prosecution and the trial court are held accountable for ensuring that the defendant is provided with a fair trial.[52] In this case, the prosecution was admonished for making prejudicial comments during the rebuttal portion of the closing arguments, and the trial court was reprimanded for failing to take curative action to prevent an effect on the jury.[53] As stated in Eldridge, the trial court has broad discretion over closing arguments,[54] and the court of appeals should overturn a verdict only if the prosecutorial misconduct “seriously affects the fairness, integrity, or public reputation of judicial proceedings.”[55] The court was acting within its powers to reverse and remand the case.

However, by citing the evidence implicating Miller (no DNA trace on the gun; only one witness; improbable throw of weapon that clears an 8-foot fence; gun landing 40 to 45 feet from the place where Smith said the weapon landed), the court suggested that the jury got the verdict wrong when it stated that the prosecution’s case was hardly “overwhelming.”[56] By reviewing “the cumulative effect of such misconduct,” the court seemed to move beyond reviewing the case based on “abuse of discretion” to apply the “substantial evidence” standard, through which appellate courts review questions of fact.[57] The appellate court is essentially hinting to Miller that he might fare better by choosing a bench trial.

-Linda Man

[1] No. 10-1187, 2010 U.S. App. LEXIS 18816 (8th Cir. 2010).
[2] Id. at *2.
[3] Id.
[4] Id. at *2-3
[5] Id.
[6] Id. at *4.
[7] Id. at *3-4. The gun found was an Arma Galesi Brescia-Brevetto,7.65 mm. Id. at *4.
[8] Id.
[9] Id.
[10] Id.
[11] Id. at *5.
[12] Id.
[13] Id.
[14] Id.
[15] Id.
[16] Id.
[17] Id.
[18] Id. at *6.
[19] Id.
[20] Id.
[21] Id. at *8.
[22] Id.
[23] Id. at *10.
[24] Id.
[25] Id.
[26] Id.
[27] Id.
[28] Id. at *11.
[29] Id. at *11-12.
[30] Id. at *12.
[31] Id.
[32] 984 F.2d 943, 946 (8th Cir. 1993).
[33] Miller, 2010 U.S. App. LEXIS 18816 at *14 (quoting United States v. Foreman, 588 F.3d 1159, 1164 (8th Cir. 2009).
[34] Id. (citing Eldridge, 984 F.2d at 947).
[35] Id. at *14.
[36] Id. at *18.
[37] Id.
[38] Id. at *17.
[39] Id. (citing United States v. Reed, 724 F.2d 677, 681 (8th Cir. 1984).
[40] Id. at *20.
[41] Id. at *20-21.
[42] Id. at *21.
[43] Id. (citing United States v. Combs, 379 F.3d 564, 574 (9th Cir. 2004)).
[44] Id.
[45] Id. at *21-22 (citing United States v. Splain, 545 F.2d 1131, 1135 (8th Cir. 1976)).
[46] Id. at *22.
[47] Id. at *23.
[48] Id.
[49] Id. at *24.
[50] Id. at *25.
[51] Id.
[52] Miller, 2010 U.S. App. LEXIS 18816
[53] Id. at *17-20.
[54] Id. at *13 (citing Eldridge, 984 F.2d at 946).
[55] Miller, 2010 U.S. App. LEXIS 18816 at *14 (quoting United States v. Foreman, 588 F.3d 1159, 1164 (8th Cir. 2009).
[56] Id. at *21-22.
[57] See Glasser v. United States, 315 U.S. 60,80 (1942); see also 662 S.W.2d 953, 955.