Not for Publication in West's Federal Reporter
United States Court of Appeals
For the First Circuit
No. 12-1431
UNITED STATES,
Appellee,
v.
KIRK LASSEND,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. F. Dennis Saylor IV, U.S. District Judge]
Before
Lynch, Chief Judge,
Stahl and Howard, Circuit Judges.
Katherine C. Essington on brief for appellant.
Carmen M. Ortiz, United States Attorney, and Mark T.
Quinlivan, Assistant United States Attorney, on brief for appellee.
October 23, 2013
Per Curiam. A jury convicted the defendant-appellant
Kirk Lassend of being a felon in possession of a firearm and
ammunition. 18 U.S.C. § 922(g)(1). The facts may be briefly
summarized. A resident of an apartment building in Fitchburg,
Massachusetts called 911 after Lassend, carrying a gun, knocked on
her door looking for someone and then left once his effort proved
unfruitful. Lassend was next seen with the gun in the street,
where he discharged the weapon into the air. The police arrived on
site and arrested Lassend, who had ammunition on him and whose
hands bore lacerations. The police located the gun in a common
area of an apartment building and also later discovered ammunition
in the defendant's apartment. Eyewitness testimony was among the
evidence presented at trial.
Lassend appeals his convictions on three bases: that the
district court erred in failing to delay sua sponte jury
empanelment due to his medical condition, that the court also erred
in its jury instruction on police investigation techniques, and,
finally, that the court erred in precluding him from making trial
use of evidence about a testifying police officer’s prior
malfeasance. He acknowledges that plain error review applies to
the first two claims; the standard of review as to the third issue
is disputed. All three claims fail.
Before jury empanelment began, defense counsel informed
the trial judge that the defendant was experiencing considerable
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pain from recent surgery, that this discomfort was compounded by
his chronic psoriasis, and that he had not received the necessary
medication to provide him with relief. Though assured by defense
counsel that the defendant was able to understand the court
proceedings, the trial judge conducted an individual colloquy with
Lassend, exploring among other topics his physical symptoms and his
ability to think clearly during the empanelment process which was
expected to last from two to four hours. Both defense counsel and
the defendant sought to move forward in court that day, and,
satisfied by the individual colloquy, the court decided to proceed
with empanelment. The court nonetheless granted Lassend's request
to delay the start of trial so that he could seek proper medication
later that same day. After examining the record, we observe
nothing amiss in this procedure. See United States v. Maryea, 704
F.3d 55, 72 (1st Cir. 2013)(affirming decision not to re-evaluate
an individual's competency where a record colloquy "demonstrated
her ability to follow the court's line of questioning, to
understand said questioning, to converse and interact with her
attorney, and to provide coherent responses regarding her rights");
United States v. Savinon-Acosta, 232 F.3d 265, 268-69 (1st Cir.
2000) ("[P]ractical judgments can usually be made. Courts have
commonly relied on the defendant's own assurance (and assurances
from counsel) that the defendant's mind is clear. Further, the
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defendant's own performance in the course of a colloquy may
confirm, or occasionally undermine, his assurances.")
As for Lassend's second claim, we note that his trial
defense was premised at least in part on a purported faulty police
investigation. For example, the defense targeted law enforcement's
decision not to have particular items, such as Lassend's clothing
and swabs taken from the gun, tested for gun residue and for DNA.
The court discussed with counsel language options for a jury
instruction pertaining to law enforcement techniques. Ultimately,
the court provided a jury instruction on the matter, to which the
defendant did not object. That instruction did not -- as Lassend
contends -- communicate to the jury that it was foreclosed from
considering the adequacy of the police investigation when deciding
whether the government had proven its case beyond a reasonable
doubt. Cf. Commonwealth v. Bowden, 399 N.E.2d 482, 491 (Mass.
1980) (finding reversible error where instructions removed from
jury's consideration the failure of the authorities to conduct
certain tests or produce certain evidence). Rather, the court
informed the jury that it could draw reasonable inferences from the
fact that certain tests were inconclusive or not conducted, or that
certain techniques were not used, as well as that law enforcement
is not legally required to use any specific or all possible tests
or techniques in order to prove its case. We discern no plain
error in this instruction. See United States v. Brown, 669 F.3d
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10, 29 (1st Cir. 2012) (explaining plain error review of jury
instructions); see, e.g., United States v. Cota-Meza, 367 F.3d
1218, 1223 (10th Cir. 2004); United States v. Saldarriaga, 204 F.3d
50, 52-53 (2d Cir. 2000); United States v. Mason, 954 F.2d 219, 222
(4th Cir. 1992).
As his final claim, Lassend contends that the district
court precluded him from making use of, through cross examination
or otherwise, a past disciplinary infraction of a testifying police
officer. As far as we can tell, the court issued no such ruling.
Rather, the court deemed the matter moot once defense counsel
expressly indicated an intent not to pursue it. In any event, even
if the issue were preserved, the defendant's appellate argument
would have no traction, because the district court would not have
abused its discretion in foreclosing use of the personnel
information under Federal Rule of Evidence 403. See United States
v. Anthony, 545 F.3d 60, 66 (1st Cir. 2008) ("We accord district
courts considerable latitude in this exercise and review the
exclusion of evidence under Rule 403 for abuse of discretion.").
The record justifies a conclusion that a single infraction
occurring more than forty years ago carried little probative value
with respect to witness credibility, and that its admission would
lead to unfair prejudice, undue delay, and waste of judicial
resources.
For the reasons enunciated, the convictions are affirmed.
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