UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 06-5209
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
JOHN LEWIS MASSEY,
Defendant - Appellant.
Appeal from the United States District Court for the District of
South Carolina, at Rock Hill. Cameron McGowan Currie, District
Judge. (0:04-cr-00499)
Submitted: October 1, 2007 Decided: December 11, 2007
Before MOTZ and KING, Circuit Judges, and HAMILTON, Senior Circuit
Judge.
Affirmed by unpublished per curiam opinion.
Katherine E. Evatt, Assistant Federal Public Defender, Columbia,
South Carolina, for Appellant. Reginald I. Lloyd, United States
Attorney, Stacey D. Haynes, Assistant United States Attorney,
Columbia, South Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Following a jury trial, John Lewis Massey was convicted
of one count of being a felon in possession of a firearm, in
violation of 18 U.S.C. §§ 922(g)(1), 924(a)(2), and 924(e) (2000).
After being sentenced to 295 months’ imprisonment, Massey timely
noted an appeal. On appeal, Massey contests the denial of his
motion to suppress the inculpatory statement he gave while in
custody and the denial of his motion for a mistrial. For the
reasons outlined below, we affirm.
Taken in the light most favorable to the government,
Evans v. United States, 504 U.S. 255, 257 (1992), the evidence
adduced at trial established the following facts. On September 27,
2002, at approximately 4:00 a.m., Massey approached the apartment
building where Angela Patterson (“Angela”), Massey’s ex-girlfriend,
and Angela’s mother, Mary Patterson (“Mary”), lived. After
observing that Massey had a firearm, Angela called the police.
Shortly thereafter, Mary witnessed Massey discharge the firearm.
Hearing the 911 call over the police radio, Richard
Imboden, a security guard employed by the leasing company for the
apartment complex, immediately responded. Imboden saw Massey
running through the complex and, as he gave chase, observed Massey
remove a gun from the waistband of his pants and throw it over a
fence into a wooded area. Upon their arrival on the scene,
Lancaster Police Department Officers Grant and McCowan searched the
- 2 -
wooded area and recovered the firearm approximately thirty minutes
later.
While in custody at the police station, Massey asked to
speak with Lancaster Police Department Detective Pat Parsons.
Prior to speaking with Massey, Parsons used the Department’s notice
of rights and waiver of rights form (“waiver form”) to advise
Massey his rights under Miranda v. Arizona, 384 U.S. 436 (1966).
Massey indicated that he understood the rights as read to him by
Parsons, was willing to waive those rights, and that he wished to
talk with Parsons. Parsons gave Massey the waiver form so he could
read the waiver provision; Massey signed the waiver form and
Parsons witnessed the signature.
At Massey’s request, Parsons wrote Massey’s statement,1
in which Massey admitted he owned the gun retrieved by the police.
In signing the statement, Massey averred he had read the statement,
and that it was true and correct to the best of his knowledge.
Massey made no changes to the statement as written by Parsons.
Prior to the commencement of trial, Massey moved to
suppress his statement. Massey maintained Parsons did not read
Massey his Miranda rights and that Parsons did not provide Massey
1
At Parsons’ request, Massey initialed the statement where it
indicated Parsons was writing the statement at Massey’s direction.
- 3 -
the waiver form.2 Massey further maintained that, though he signed
the written statement, he did not know or understand its contents
because he could not read or write. Massey further denied
admitting the gun was his.
To refute Massey’s contention that he was illiterate, the
Government presented several letters Massey sent Angela from
prison. Although Massey admitted signing and sending the letters,
he denied writing them himself. According to Massey, he had
dictated the letters to another inmate and later copied them so
they would be in his own handwriting.
At the suppression hearing, Parsons testified that he
read the entire waiver form aloud to Massey — including the waiver
provision — and that Massey signed it. Although Parsons conceded
he did not inquire as to Massey’s ability to read or write, Parsons
testified he gave Massey the statement to read and sign, which
Massey did.
In denying Massey’s motion, the district court found that
Parsons informed Massey of his Miranda rights, that Massey
understood those rights, and that Massey had knowingly and
voluntarily waived them. Crediting Parsons’ testimony that he read
the waiver form to Massey, the district court relied on Massey’s
testimony that he understood documents read aloud to buttress the
2
Massey acknowledged that his signature appeared on the waiver
form.
- 4 -
court’s conclusion that the waiver was knowingly entered and that
the statement was voluntarily given. After his motion to suppress
was denied, Massey proceeded to trial, where he was convicted of
the charged offense.
Massey’s first claim on appeal restates the argument
raised and rejected by the district court at the suppression
hearing: that, because he cannot read or write, Massey did not
understand the waiver; thus, because he did not knowingly waive his
Miranda rights, the inculpatory statement was not voluntary.3 This
court reviews the district court’s factual findings underlying the
adjudication of a motion to suppress for clear error, and the
district court’s legal determinations de novo. United States v.
Grossman, 400 F.3d 212, 216 (4th Cir. 2005). When a suppression
motion has been denied, this court reviews the evidence in the
light most favorable to the Government. Id.
Massey’s challenge to the denial of his motion to
suppress is entirely predicated on his position that the district
court erred in reaching its credibility determinations. However,
this court does not review the factfinder’s credibility
determinations. Columbus-America Discovery Group v. Atlantic Mut.
Ins. Co., 56 F.3d 556, 567 (4th Cir. 1995); see also United States
v. Saunders, 886 F.2d 56, 60 (4th Cir. 1989). Given that factual
3
Massey does not contend that the waiver form was inadequate,
and even a cursory review thereof reveals that it conformed to the
dictates of Miranda.
- 5 -
issues involved in a motion to suppress are reviewed for clear
error and that this court will not second-guess the district
court’s credibility determination, this claim fails.
Massey next challenges the district court’s denial of his
motion for a mistrial. Massey’s motion was predicated on Angela’s
testimony on cross-examination regarding how certain she was that
Massey was carrying a gun. The challenged testimony was as
follows:
Q: It was a silver gun with a brown handle?
A: Uh-huh (affirmative response)
Q: Did you notice anything else about the gun?
A: Un-huh (negative response). John carried numerous guns,
anyway.
Defense counsel immediately objected; the district court struck the
last statement and instructed the jury that it could not be
considered as evidence.
Despite the limiting instruction, defense counsel moved
for a mistrial. Acknowledging the improper purpose that likely
prompted the statement, the district court nonetheless denied the
motion, noting it would give a further curative instruction. When
the jury returned, the district court issued the following
instruction:
Ladies and gentlemen of the jury, the only issue in this
case is whether or not the government can prove beyond a
reasonable doubt whether or not Mr. Massey possessed a
firearm and ammunition on September 27th, 2002. I am
striking and have stricken and want to make sure you
understand that the statement volunteered by Ms.
Patterson during her testimony before the break was
inadmissible. Even though you heard it, you may not
- 6 -
consider it at all and it may not be part of your
deliberations at all. It was improper . . . . You may
not consider this in deciding what the facts are in this
case in any manner whatsoever.
On appeal, Massey contends that, though the district
court properly struck this testimony from the record, it erred in
denying the motion for a mistrial because this improper testimony
went to “the only critical fact at trial, which was not
conclusively proven by the remaining evidence.”
We review the denial of a motion for a mistrial for abuse
of discretion. United States v. Dorlouis, 107 F.3d 248, 257 (4th
Cir. 1997). “In order for the trial court’s ruling to constitute
such an abuse of discretion, the defendant must show prejudice; no
prejudice exists, however, if the jury could make individual guilt
determinations by following the court’s cautionary instructions.”
United States v. Dorsey, 45 F.3d 809, 817 (4th Cir. 1995) (internal
citation omitted). Reversal is required only if there is a clear
abuse of discretion and a “‘reasonable possibility that the jury’s
verdict was influenced by the material that improperly came before
it.’” United States v. Seeright, 978 F.2d 842, 849 (4th Cir. 1992)
(quoting United States v. Barnes, 747 F.2d 246, 250 (4th Cir.
1984)).
We conclude the mere utterance of the statement did not
require that the district court declare a mistrial. The statement
was an isolated remark that was stricken immediately after it was
offered, was not repeated or referenced by the Government, and was
- 7 -
the subject of an appropriate cautionary instruction. Moreover, in
light of the overwhelming evidence of Massey’s guilt, it cannot
reasonably be contended that, but for this statement, the jury
would have acquitted Massey. Through the testimony of the three
eye-witnesses — Angela, Mary, and Imboden — the Government
conclusively established Massey’s possession of the firearm on the
morning of September 27, 2002. Because the Government presented
ample evidence of Massey’s guilt, the district court properly
denied the motion for a mistrial.4
Accordingly, we affirm Massey’s conviction. We dispense
with oral argument because the facts and legal contentions are
adequately presented in the materials before the court and argument
would not aid the decisional process.
AFFIRMED
4
Massey analogizes his case to United States v. Tate, 715 F.2d
864 (4th Cir. 1983), in which this court vacated the defendant’s
conviction because the district court improperly admitted evidence
regarding the defendant’s prior possession of a firearm. Id. at
865-66.
The circumstances here, however, are readily distinguishable
from Tate. First and foremost, unlike in Tate where the evidence
of the defendant’s prior bad act was admitted, the district court
here struck the challenged statement from the record. Further, the
district court twice instructed the jury that it could not consider
the statement as part of the body of evidence. As this court has
repeatedly held, “[t]he law assumes that, except in extraordinary
circumstances, jurors follow a court’s instructions.” Jones v.
Polk, 401 F.3d 257, 264 (4th Cir. 2005). Tate simply does not
afford Massey any relief.
- 8 -