Court: Court of Appeals for the Sixth Circuit; October 13, 2004; Federal Appellate Court
Derrick D. Moore appeals his convictions for armed bank robbery, homicide, assault, possessing a firearm as a convicted felon, and possessing cocaine base. He raises several issues, including the district court's refusal to bifurcate the felon-in-possession charge, improper references to his prior conviction, inappropriate questions posed by the prosecutor to a witness, and the court's direction to the jury for a supplemental interrogatory regarding drug possession after announcing a guilty verdict. The court rejects all of Moore's claims and affirms his convictions.
Evidence presented at trial established that co-defendant Tiffany Pennington committed the armed bank robbery in Louisville, Kentucky, during which he fatally shot a bank employee. Moore's involvement included retrieving the handgun used in the crime and being identified as the getaway driver. He had previously asked Richard Jewell to procure a firearm for him, as he was unable to purchase one legally. The police discovered 188 grams of crack cocaine in Moore's girlfriend's home following a consented search.
The district court handled the drug possession charge separately, but denied Moore's request to separate the elements of the felon-in-possession charge. Pennington testified against Moore, confirming their collaboration in planning the robbery and that Moore drove the getaway vehicle.
Moore requested to bifurcate the felon-in-possession charge before trial, arguing that evidence of his prior conviction would prejudice the jury. He suggested that the jury first determine if he possessed a handgun, with his felony conviction introduced only if they found possession. The district court denied this motion, stating that his criminal history was relevant to other charges, making its disclosure inevitable and not prejudicial. Moore subsequently stipulated to his prior felony conviction.
The decision to bifurcate lies within the district court's discretion, which is reviewed for abuse of discretion. Other circuits have similarly upheld the denial of bifurcation for felon-in-possession charges. The court found no abuse of discretion in this case, noting that the jury would learn of Moore's felony conviction in connection with the bank robbery charges, as an investigator linked him to the crime through a third party who purchased a firearm for him. This linkage meant that the prosecution would reference his felony conviction regardless of bifurcation.
Moore also argued that references to his felony conviction during the trial denied him fair proceedings and warranted mistrials. The prosecutor mentioned the conviction during opening, closing, and rebuttal statements. However, the court found these references appropriate, as they were necessary to inform the jury about the stipulation, which eliminated the need for the prosecution to prove this element. The prosecutor's comments were deemed no broader than required, and the court instructed the jury to consider the stipulation solely for confirming his prior conviction, not for any other purpose.
Kincade v. Sparkman, 175 F.3d 444 (6th Cir. 1999) established that prosecutorial comments deemed improper did not deny Moore a fair trial, particularly since a curative instruction was provided. Detective Duncan testified that Moore admitted to meeting Pennington in prison and mentioned his felony convictions, which legally barred him from purchasing a handgun. Moore allegedly offered Jewell money to buy a gun for him, a statement relevant to the bank robbery charges linked to Jewell. The district court instructed the jury to consider these statements solely for their occurrence, not as evidence of guilt.
Moore's prior relationship with Pennington was pertinent to establishing a shared plan for the bank robbery, explaining why Moore had Jewell purchase the gun instead of doing so himself. The situation mirrored United States v. Harris, where a witness's reference to the defendant's prior arrest was not grounds for reversal due to a lack of intent to elicit such information and the presence of a limiting instruction. Similar reasoning applied to a case where a witness mentioned the defendant's extensive criminal record, which was isolated and followed by a curative instruction.
Factors determining whether improper statements affected the defendant's rights include the presence of curative instructions, detail of the criminal references, and their significance relative to the overall evidence. In a separate drug possession trial, Deputy Sheriff Menzie testified that Moore denied the presence of weapons in his girlfriend's house, citing his status as a convicted felon. The district court immediately instructed the jury to disregard this irrelevant statement and denied Moore's mistrial motion regarding it.
Officer Menzie’s statement regarding the defendant's prior felony conviction was deemed an inadvertent error rather than intentional misconduct by the Government, which did not significantly impact the trial's fairness. The district court's refusal to declare a mistrial was appropriate since the comment was promptly addressed and did not overshadow the other evidence against the defendant, Moore, who had already admitted ownership of the drugs in question.
Moore also challenged the denial of a mistrial based on two questions posed by the prosecutor during the bank robbery trial that the court quickly instructed the jury to disregard. The court found that these questions did not compromise Moore's right to a fair trial, as they were unrelated and the jury was adequately admonished.
Additionally, Moore raised a new claim of prosecutorial misconduct related to pretrial witness coaching, but this argument was not considered because it was not included in his initial brief, adhering to the court's standard practice.
Regarding the drug possession charge, the indictment accused Moore of knowingly possessing over 50 grams of crack cocaine with intent to distribute. The jury was instructed to determine the quantity involved if found guilty. The court also provided instructions on the lesser charge of simple possession, clarifying that the jury need not assess the amount if they found Moore guilty of this lesser offense, as both counsel had agreed on this point during the instruction discussions.
Moore was found guilty of simple possession of cocaine base, and the prosecutor indicated the need to establish the quantity possessed, as penalties increase for possession exceeding five grams under 21 U.S.C. 844(a). Moore argued that the government had waived this requirement by agreeing that the amount need not be determined if only simple possession was found. The district court acknowledged a probable waiver but deemed it correctable since the jury had not been dismissed and determined that proceeding with the amount determination would not prejudice Moore. The court provided a supplemental instruction for the jury to assess whether Moore possessed five grams or more, which resulted in the jury finding beyond a reasonable doubt that he possessed more than five grams.
The district court's issuance of the supplemental instruction was deemed proper, as it did not prejudice Moore and aligned with statutory requirements for sentencing. It was noted that had the jury been initially instructed to determine the amount, they would have included this finding in their initial verdict. A mandatory sentence of at least five years applies for possession of more than five grams. The standard for reviewing supplemental jury charges is abuse of discretion, and given the circumstances, the court acted within its broad discretion. Consequently, the district court's judgment was affirmed.
