In the
United States Court of Appeals
For the Seventh Circuit
No. 09-2575
U NITED S TATES OF A MERICA,
Plaintiff-Appellee,
v.
D ARRYL T AYLOR,
Defendant-Appellant.
Appeal from the United States District Court
for the Southern District of Indiana, Indianapolis Division.
No. 08 cr 39 SEB KPF—Sarah Evans Barker, Judge.
A RGUED A PRIL 21, 2010—D ECIDED M AY 14, 2010
Before C UDAHY, R IPPLE, and H AMILTON, Circuit Judges.
C UDAHY, Circuit Judge. In 2009, Darryl Taylor was
convicted of armed robbery, attempted armed robbery
and two separate counts of brandishing a short-barreled
shotgun in relation to two crimes of violence. He was
sentenced to 444 months’ imprisonment. In the present
appeal, Mr. Taylor contends that the district court com-
mitted reversible error in denying his offering of the
testimony of one Dale Serie. Mr. Serie served as a pastor
2 No. 09-2575
on Sundays at the Volunteers of America, which is a half-
way house where Mr. Taylor resided pending trial. The
defendant, expressing a desire to take the stand in his
own defense, wished to offer Mr. Serie’s testimony as to
his reputation for truthfulness. This was a curious goal,
since the defendant at trial argued that he had lied in
his earlier confession to the police. Presumably, then,
evidence of his renown for veracity would bolster the
prosecution’s case. Nevertheless, Mr. Taylor represented
to the court that Mr. Serie’s testimony would go to his
honesty in taking the stand, rather than to statements
he made at the time of the offense. The district court
then conditioned Mr. Serie’s taking the stand on the
defendant’s actually testifying. Ultimately, the defendant
elected not to testify and so the defense rested without
the benefit of Mr. Serie’s testimony. We find no error in
the district court’s evidentiary ruling. Since Mr. Serie’s
testimony was to be limited to bolstering the defendant’s
own testimony, the former was irrelevant in the absence
of the latter. This fact was correctly noted by the district
court. Even if the court had erred in so ruling, however,
a veritable mountain of evidence as to the defendant’s
guilt rendered any such error harmless. For these
reasons and the reasons that follow, we affirm the judg-
ment of the district court.
I. BACKGROUND
On September 30, 2007, two men, one of whom was later
determined to be Darryl Taylor, entered a Speedway
convenience store in Indiana, wearing dark clothing and
No. 09-2575 3
wielding firearms, which included a sawn-off shotgun.
Although the police received a 911 call concerning the
robbery, the two individuals made off with $150 and some
cigarettes. Presumably not satisfied with this bountiful
take, Mr. Taylor entered a Village Pantry Store the fol-
lowing evening, again carrying a sawn-off shotgun. A
quick-thinking employee darted for the exit and ran to
a nearby fire station, where he called 911.
Although Mr. Taylor had left the scene by the time the
police arrived, officers pulled over a green Saturn station
wagon that had run a red light. After a brief chase, the
driver jumped out of the car and ran away while the
vehicle was still moving. He escaped. The police discov-
ered Mr. Taylor sitting in the front passenger seat
and noticed a sawn-off shotgun protruding from the
back seat. A further search revealed a variety of parapher-
nalia, including two dark-knit caps, sunglasses and
other items of clothing consistent with what the
suspects involved in the Speedway and Village Pantry
Store robberies had worn. The search also uncovered a .38
handgun. At the scene of the traffic stop, the Village
Pantry Store employee who had run to call the police
identified Mr. Taylor as the armed robber who had at-
tempted to hold up the store earlier that night.
In the early hours of October 2, the Indianapolis Metro-
politan Police Department interviewed Mr. Taylor at the
department’s robbery unit. Having received a Miranda
warning and waived his rights, Mr. Taylor confessed to
being the individual who attempted to rob and robbed
the Village Pantry Store and Speedway convenience
store, respectively. He admitted using a sawn-off shot-
4 No. 09-2575
gun and said that his accomplice had used the handgun.
However, he disclaimed any knowledge as to the
identity of the second robber of the Speedway store or
the driver of the Saturn. In addition to obtaining this
confession, the police acquired surveillance footage
from both stores, which suggested that Mr. Taylor was
indeed the robber.
Pending trial, Mr. Taylor resided at a half-way house,
the Volunteers of America. While there, the defendant
attended Sunday evening religious services, which were
overseen by Dale Serie in his capacity as a lay pastor.
In his opening statement at trial, the defendant
argued through his attorney that the evidence would
show that he was at his sister’s house at the time of the
Speedway robbery. He maintained that, on the day of the
attempted robbery of the Village Pantry Store, he had
encountered an individual whom he knew only as
“Black.” The evidence would further show that Black
encouraged the defendant to join him on a trip to see
some female friends. When they arrived at a location
near the Village Pantry Store—the defendant argued—
Black left and returned a short time later in an agitated
state. The two men then left in the Saturn, upon
which time they were pulled over by the police. The
defendant further submitted that the evidence would
show that he was in fear for his life.
In presenting the defense’s evidence, Mr. Taylor
called his two sisters, both of whom testified that the
defendant had been at his sister’s apartment on the eve-
ning of the Speedway robbery. The defendant then
No. 09-2575 5
sought to introduce the testimony of Mr. Serie as to the
former’s propensity for truthfulness. A hearsay objection
immediately followed and Judge Barker called both
counsel to the bench. The court quickly made clear its
skepticism to Mr. Serie’s testifying to the defendant’s
character, observing that the witness knew him for
merely a single year and had never met him prior to the
robberies with which he had been charged. The court
expressed uncertainty as to the relevance of any
character testimony going to Mr. Taylor’s reputation
for truthfulness during the last year. In response to the
defendant’s assertion that he was going to ask the
witness “as to whether Darryl Taylor is a truthful person,”
the court disagreed, stating that “[y]ou can’t ask that,
Counsel. That is not character evidence.” The following
exchange then took place:
Mr. McKinley: Your Honor, my client’s character and
his propensity for truthfulness is always an issue.
I submit that his opinion concerning Mr. Taylor’s
propensity for truth and veracity is relevant and
it would be . . .
The Court: How is it relevant? You’re just saying that.
You have to link it for me. I don’t see the relevance.
That’s why I have you up here.
Mr. McKinley: Your honor, my client is—it’s my
understanding my client is going to take the stand.
Clearly his truthfulness is a key issue.
The Court: So is it his truthful testimony you are
trying to buttress?
6 No. 09-2575
Mr. McKinley: Yes, Your Honor.
The Court: Not any statements he made at the time
of the offense?
Mr. McKinley: Not—not with regard to statements
made at the time of the offense, no, but with regard
to his honesty today in taking the stand.
The Court: Is he going to take the stand?
Mr. McKinley: He told me he is going to take the stand.
The Court: Okay. I think we’ll just ask this witness
to stand by, he may be able to testify afterwards—
Mr. McKinley: All right.
The Court:—if the defendant takes the stand, but
otherwise it’s not an issue in this case if he doesn’t
take the stand because he didn’t even know the defen-
dant during any other time.
Defense counsel then conferred with Mr. Taylor and
informed the court that his client had chosen not to
testify. Lacking any more witnesses, the defense rested.
The jury subsequently returned a verdict of guilty on all
counts. Mr. Taylor was then sentenced to 444 months in
prison. The present appeal, which focuses purely on the
question whether the district court erred in conditioning
Mr. Serie’s testimony on the defendant’s testifying, fol-
lowed.
No. 09-2575 7
II. DISCUSSION
A. The District Court Did Not Err in Conditioning Mr.
Serie’s Testimony on the Defendant’s Taking the Stand
The appellant challenges the district court’s evidentiary
determination that Mr. Serie’s testimony was not admissi-
ble on grounds of relevance unless Mr. Taylor testified.
We note at the outset that an appellant seeking to
reverse a district court’s ruling on an evidentiary matter
faces an uphill battle. United States v. Lane, 267 F.3d 715,
719 (7th Cir. 2001). We review the trial judge’s
evidentiary ruling for abuse of discretion and will not
reverse unless the record contains no evidence on which
the district court could have rationally based its deci-
sion. United States v. Turner, 591 F.3d 928, 935 (7th
Cir. 2010). We have held that the trial court has “broad
discretion to assess the relevancy of proffered evidence.”
United States v. Wilburn, 581 F.3d 618, 624 (7th Cir. 2009)
(quoting United States v. Fuesting, 845 F.2d 664, 673 (7th
Cir. 1988)).
Mr. Taylor argues on appeal that “evidence of the
character and reputation of a defendant charged with a
crime is always admissible on behalf of a defendant.” Read
literally, this statement cannot be true, since relevance
under Fed. R. Evid. 402 is a necessary predicate for
any given piece of evidence’s admissibility. The ques-
tion in the present case is whether testimony as to the
defendant’s reputation for truthfulness was so clearly
relevant for the purposes for which it was to be presented
that the district court abused its discretion in condi-
tioning its admissibility in the manner it did.
8 No. 09-2575
There is no question that a defendant’s reputation for
honesty or integrity is often relevant evidence in a
criminal case. But broad observations of this kind are ill-
suited to the context-specific evidentiary determination
presently before us. Mr. Serie’s testimony would have
established the defendant’s reputation for truthfulness.
To the extent this established Mr. Taylor’s propensity
for veracity generally, to say the very least it would fit
awkwardly with the defense’s argument that Mr. Taylor
had in fact lied to the police on October 2, 2007 when
he admitted his role in the armed robberies.
The district court pointed out that Mr. Serie had never
met the defendant prior to his alleged commission of
the crimes and so could not offer an opinion on his reputa-
tion for truthfulness at that time. This might be going
too far, for relevance is defined by Fed. R. Evid. 401 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.” (emphasis added). If
the defendant’s post-arrest conduct led a community to
believe that he was an honest person, that fact surely
has some tendency, however minimal, to show that he
was honest before his arrest.
Nevertheless, we can readily conclude that the district
court did not abuse its discretion. During the colloquy
following the government’s hearsay objection to Mr. Serie’s
testimony, defense counsel ultimately made clear to the
court that the proffered testimony was to be offered with
regard to the defendant’s taking the stand. The limited
No. 09-2575 9
purpose for which the evidence was to be introduced
makes some sense. As noted above, introducing it for
demonstrating Mr. Taylor’s reputation for truthfulness
generally might bolster the government’s case. But Mr.
Serie’s testimony could not be relevant unless the defen-
dant in fact took the stand. If Mr. Taylor did not testify in
his defense, there is no testimony for Mr. Serie to buttress
through character evidence. The district court’s ruling
to this effect makes eminent sense. Therefore, we cannot
say it erred in conditioning Mr. Serie’s testimony on the
defendant’s taking the stand.
Finally, we must address the appellant’s contention
that he sought to offer the testimony of Mr. Serie to estab-
lish his “propensity for truthfulness, as well as [his]
honesty, integrity, and peaceful and law-abiding nature[.]”
This is inconsistent with the appellant’s argument
before the district court, where he did not indicate that
the testimony was to be offered for purposes beyond
showing a reputation for truthfulness. Instead, he im-
pressed upon the district court that the testimony was
to be offered to prove the character of the witness for
truthfulness and veracity. Mr. Taylor’s argument that
the testimony would have gone to his peaceful and law-
abiding nature is thereby forfeited. See United States
v. Davis, 15 F.3d 1393, 1407 (7th Cir. 1994) (noting that
“the specific ground for reversal of an evidentiary
ruling on appeal must also be the same as that raised at
trial”); see also United States v. Clark, 535 F.3d 571, 577 (7th
Cir. 2008) (distinguishing forfeiture from waiver). We
therefore engage in plain-error review only. This is a
“demanding” standard. United States v. Warren, 593
10 No. 09-2575
F.3d 540, 544 (7th Cir. 2010). “Only grave and prejudicial
errors justify reversal when the defendant did not alert
the district judge to the problem.” United States v. Noel,
581 F.3d 490, 505 (7th Cir. 2009) (Easterbrook, C.J., con-
curring). We have defined a plain error as one that
results in an actual miscarriage of justice. United States v.
Wynn, 845 F.2d 1439, 1442-43 (7th Cir. 1988). Plain error
only exists if the defendant probably would have been
acquitted but for the mistake. See United States v. Lewis,
567 F.3d 322, 327 (7th Cir. 2009).
There is no plain error in the district court’s condi-
tioning Mr. Serie’s testimony on the defendant’s taking
the stand. As we now explain, the evidence against the
defendant was overwhelming, such that Mr. Serie’s testi-
mony’s being admitted almost certainly would not
have resulted in an acquittal.
B. Even If the District Court Did Err, Any Such Error
Was Harmless
Our preceding conclusion that the district court
did not abuse its discretion in requiring that the
defendant take the stand before it would allow Mr. Serie
to testify is dispositive of the current appeal. Neverthe-
less, assuming arguendo that the district court erred in
this determination, we note that any such error would
have been entirely harmless. Of course, harmless error
resulting from an erroneous evidentiary ruling is not
a ground for reversal. See Thomas v. Cook County
Sheriff’s Dept., 588 F.3d 445, 458 (7th Cir. 2009).
No. 09-2575 11
The evidence against Mr. Taylor is simply overwhelm-
ing. Eyewitness testimony established that he was the
person who attempted to rob the Village Pantry Store on
October 1, 2007. Surveillance footage from both that store
and Speedway indicated that the defendant was indeed the
armed robber. The firearms recovered from the Saturn
linked Mr. Taylor to the robberies. And, of course, there is
the not-insignificant matter of Mr. Taylor’s videotaped
confession to the crimes. This evidence is essentially
conclusive and so any error underlying the district court’s
evidentiary ruling as to Mr. Serie’s testimony was harm-
less.
CONCLUSION
It is tragic that a young person like Mr. Taylor would
throw a significant part of his life away by engaging in the
acts he did on September 30 and October 1 of 2007. His
actions on those two days have resulted in his having to
serve 444 months in jail. The evidence of his guilt was
overwhelming and he cannot prevail on appeal by chal-
lenging the district court’s decision to condition
Mr. Serie’s testimony on the defendant’s taking the
stand himself. The trial court did not abuse its discretion
in making this evidentiary determination. Even if the
court had erred in this regard, though, any error would
have been entirely harmless. The judgment of the
district court is therefore
A FFIRMED.
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