United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 04-1223
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United States of America, *
*
Appellee, *
* Appeal from the United States
v. * District Court for the
* Southern District of Iowa.
Demarko S. Walker, *
*
Appellant. *
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Submitted: October 19, 2004
Filed: January 13, 2005
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Before MORRIS SHEPPARD ARNOLD, BOWMAN, and RILEY, Circuit Judges.
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RILEY, Circuit Judge.
After a jury convicted Demarko Walker (Walker) of being a felon in possession
of a firearm in violation of 18 U.S.C. § 922(g)(1), the district court1 entered judgment
and sentenced Walker to 112 months imprisonment. Walker appeals, arguing the
district court erroneously admitted certain testimony at trial, and erroneously denied
Walker’s post-trial motions for judgment of acquittal or for a new trial. We affirm.
1
The Honorable James E. Gritzner, United States District Judge for the
Southern District of Iowa.
I. BACKGROUND
On May 13, 2003, Officer Chad Cornwell (Officer Cornwell) of the Des
Moines (Iowa) Police Department (DMPD) pulled over a Mercury Grand Marquis
(Mercury) for speeding, for not displaying a front license plate, and for having a
cracked windshield. Officer Cornwell talked with the driver of the Mercury, Otto
Gipson (Gipson), who had no identification and said his driver’s license was
suspended. Officer Cornwell then asked Walker, who was the front-seat passenger
and only other occupant, to identify himself. Walker identified himself as John
Smith, and gave Officer Cornwell a false date of birth and a false social security
number. While Officer Cornwell returned to his police cruiser to check the
information given to him, two other DMPD police officers arrived.
Officer Cornwell informed one of the newly arrived officers, Officer Stewart
Barnes (Officer Barnes), that Gipson was driving on a suspended license, the
passenger may have provided false information, and a beer bottle was on the
floorboard between the driver and passenger. Officer Barnes approached the Mercury
and asked Gipson to step out of and behind the vehicle. While another officer kept
Gipson under observation at the rear of the vehicle, Officer Barnes talked to Walker,
who remained in the passenger seat. Officer Barnes asked Walker a few questions,
and Walker still did not provide his real identity, age or date of birth. Officer Barnes
removed the beer bottle from the Mercury and informed Walker there was a problem.
Officer Cornwell then learned Walker had given false information, informed
Officer Barnes of this finding, and approached the passenger-side of the Mercury.
As Officer Cornwell approached the vehicle, Officer Barnes told Officer Cornwell
that Walker needed to be removed from the vehicle. Walker then slid across to the
driver’s seat, put the car in gear, and sped away. Officer Barnes grabbed onto the
vehicle as it sped off, and was dragged to the next intersection while yelling at
Walker to stop the vehicle. As the Mercury approached the intersection, Walker
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slowed down and told Officer Barnes to let go. When Walker sped up again, Officer
Barnes let go and hit the pavement.
Lieutenant Leesa Shoemaker (Lieutenant Shoemaker), a veteran of over
eighteen years with the Polk County Sheriff’s Office, received an emergency radio
broadcast that a DMPD officer was down, and that the fleeing Mercury was in close
proximity to her patrol vehicle. When Lieutenant Shoemaker spotted the Mercury
swerving in traffic, she followed it in her marked Ford Explorer (Explorer).
Lieutenant Shoemaker engaged her emergency lights and siren, but the Mercury
accelerated, running stop signs and a stop light. Walker drove the Mercury 70 miles
per hour through a residential area with a speed limit of 25 miles per hour. While
driving between 60 and 70 miles per hour, Walker twice leaned over to the passenger-
side of the vehicle, causing Lieutenant Shoemaker to lose sight of Walker.
Walker then ran a red light at another intersection and struck a van. Walker
exited the Mercury and fled on foot. Lieutenant Shoemaker continued to pursue
Walker in her Explorer. After Walker ran behind a residence, Lieutenant Shoemaker
exited her Explorer and pursued Walker on foot. Finally, Lieutenant Shoemaker
caught Walker and forced him to the ground. Lieutenant Shoemaker held Walker
until DMPD officers arrived to assist, at which time she transferred custody of Walker
to them.
Lieutenant Shoemaker returned to the intersection where Walker collided with
the van. Based on Walker’s movements during the chase, Lieutenant Shoemaker
testified she believed Walker had a gun in the Mercury. When Lieutenant Shoemaker
reached the Mercury, she told a DMPD officer “there’s a gun in that car.” The
DMPD officer and Lieutenant Shoemaker then searched the Mercury, finding a
firearm in the front passenger-side “between the seat frame where the seat bolts into
the floorboard and the floorboard.” The gun was fully loaded, but contained no
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usable fingerprints. An empty beer bottle and a portable CD player were found on
the right front floorboard.
Shortly after Walker was arrested, DMPD Detective Terry Mitchell (Detective
Mitchell) interviewed Walker. Walker told Detective Mitchell he owned the Mercury
and also admitted lying about his name, because he believed there was an arrest
warrant out on him. Walker said an officer bent down to look under the seat when
the officer told Walker his age and date of birth did not add up. Walker told
Detective Mitchell he then moved behind the wheel and drove off, because he had
given false information and because he thought he was going to be arrested based on
his belief there was an outstanding arrest warrant on him. According to Walker’s
parole officer, an arrest warrant had been issued. Walker asserted he stopped at the
intersection and asked the police officer who was hanging onto the Mercury to please
let go, which the officer did. Finally, Walker told Detective Mitchell no guns or
contraband were in the Mercury.
Walker had purchased the Mercury a day earlier from Clifton Easley (Easley),
who had known Walker for five years. Easley’s fiancee is Walker’s first cousin.
Easley had obtained the Mercury from a used-car business ten days earlier. After
acquiring the Mercury, Easley thoroughly cleaned the interior, including vacuuming
and shampooing the carpet. Easley also repaired the floorboard. Easley claimed he
never saw a firearm inside the Mercury. Easley previously had been convicted of
aggravated domestic abuse with the intent to inflict serious injury while displaying
a weapon.
The government charged Walker with being a felon in possession of a firearm.
The parties stipulated (1) the firearm was a functional Baikal/Imez .380 pistol that
had been manufactured outside of Iowa and had traveled in interstate commerce, and
(2) Walker had been convicted of a felony. Walker made a pretrial motion in limine
to preclude Lieutenant Shoemaker from testifying she believed Walker may have
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been reaching for a firearm while leaning toward the passenger seat and she told
another officer at the scene “there’s a gun in that car.” Walker argued such testimony
involved speculation and hearsay. The district court denied the motion.
At trial, Gipson, who is Walker’s brother-in-law, testified he did not know a
firearm was in the Mercury, and he did not see a firearm in the Mercury. Andre
Bomar, who is Walker’s friend and had ridden in the Mercury, testified he never saw
a firearm in the Mercury nor had he and Walker ever discussed a firearm. When
Lieutenant Shoemaker testified at trial that she told another police officer at the scene
“there’s a gun in that car,” Walker objected on the ground the statement was based
on speculation, but the district court overruled the objection and allowed the jury to
consider the statement.
After a two-day trial, a jury found Walker guilty. During trial and after trial,
Walker moved for judgment of acquittal, arguing the government had not proved
beyond a reasonable doubt Walker “had the intent to exercise dominion and control
over a firearm, which is an essential element of the charge.” Walker also contended
“[t]here hasn’t been any evidence that he had knowledge of [the firearm’s] presence
in the vehicle.” In the alternative, Walker moved for a new trial. Denying Walker’s
motions for judgment of acquittal and for a new trial, the district court entered
judgment against Walker and sentenced him to 112 months imprisonment.
On appeal, Walker contends he is entitled to judgment of acquittal because
“the evidence [at trial] was insufficient for a rational jury to find beyond reasonable
doubt that he knowingly and intentionally possessed the handgun.” In a similar vein,
Walker contends the district court abused its discretion in denying Walker’s motion
for a new trial, because the jury’s verdict was against the weight of the evidence.
Finally, Walker contends the district court abused its discretion by allowing
Lieutenant Shoemaker to testify at trial “on the ultimate issue of fact,” that she
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believed Walker was leaning over to the Mercury’s passenger-side to retrieve a
firearm.
II. DISCUSSION
A. Sufficiency of the Evidence
Walker argues the district court erroneously denied his motion for judgment
of acquittal, because there was insufficient evidence to support the guilty verdict for
being a felon in possession of a firearm. Walker “confronts a high hurdle with this
argument, as we must employ a very strict standard of review on this issue.” United
States v. Cook, 356 F.3d 913, 917 (8th Cir. 2004). We “view the evidence in the light
most favorable to the government, resolving evidentiary conflicts in favor of the
government, and accepting all reasonable inferences drawn from the evidence that
support the jury’s verdict.” Id. (citation omitted). “We may reverse only if no
reasonable jury could have found [Walker] guilty.” Id.
To convict Walker under 18 U.S.C. § 922(g)(1),2 the government had to prove
beyond a reasonable doubt: “(1) [Walker] had previously been convicted of a crime
punishable by a term of imprisonment exceeding one year; (2) [Walker] knowingly
possessed a firearm; [and] (3) the firearm has been in or has affected interstate
commerce.” United States v. Maxwell, 363 F.3d 815, 818 (8th Cir. 2004). The
parties stipulated to the first and third elements, thereby requiring the government to
prove only that Walker knowingly possessed a firearm.
The government could prove Walker knowingly possessed the firearm if he had
actual or constructive possession of the firearm, and possession of the firearm could
2
Section 922(g)(1) makes it “unlawful for any person who has been convicted
in any court of, a crime punishable by imprisonment for a term exceeding one year
. . . to . . . possess in or affecting commerce, any firearm or ammunition; or to receive
any firearm or ammunition which has been shipped or transported in interstate . . .
commerce.”
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have been sole or joint. United States v. Eldridge, 984 F.2d 943, 946 (8th Cir. 1993).
“Constructive possession of the firearm is established if the person has dominion over
the premises where the firearm is located, or control, ownership, or dominion over the
firearm itself.” United States v. Boykin, 986 F.2d 270, 274 (8th Cir. 1993). When
firearms have been found in a vehicle’s trunk, our court has stated a defendant “had
dominion and control over the firearms because he had control of the keys to the
trunk of the car.” Eldridge, 984 F.2d at 946; see also United States v. Hiebert, 30
F.3d 1005, 1009 (8th Cir. 1994) (affirming a felon-in-possession conviction because
the defendant “had control over the rifle, as it was found in the vehicle that he was
driving”).
Sufficient evidence supports the jury’s conviction. Walker owned the Mercury,
and he was initially seated in the front passenger seat, under which the firearm was
later discovered. Gipson, who was driving Walker’s Mercury, testified he knew
nothing about a firearm in the vehicle. Easley extensively cleaned the Mercury before
Walker purchased it. No firearm was found during the cleaning. When Officers
Barnes and Cornwell asked Walker for his identification, Walker lied about his name,
date of birth, age, and social security number. Walker fled police after an officer
leaned into the vehicle and appeared to search under the front seat where the firearm
was concealed. Finally, Walker’s actions during the car chase are equally
incriminating, as Walker twice leaned over to the front passenger seat that concealed
the firearm. See United States v. Flenoid, 718 F.2d 867, 868 (8th Cir. 1983) (per
curiam) (affirming felon-in-possession conviction based only on the arresting
officer’s testimony he saw the defendant “bend down and reach under the car seat”
where the firearm was actually found, even though the car’s passenger testified the
defendant did not reach beneath the seat and no one had ever seen the defendant
actually possess the firearm).
Walker contends all of this evidence can be explained in a way that supports
his claim of innocence. However, the jury rejected Walker’s explanations. We will
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not disturb the jury’s reasonable verdict. See United States v. Anderson, 78 F.3d 420,
422 (8th Cir. 1996) (“The evidence need not exclude every reasonable hypothesis of
innocence, and we may not disturb the conviction if the evidence rationally supports
two conflicting hypotheses.”).
B. Motion for a New Trial
Walker contends the district court abused its discretion in denying the motion
for a new trial, again arguing the weight of the evidence does not support the jury’s
guilty verdict. Federal Rule of Criminal Procedure 33(a) authorizes a district court
to “vacate any judgment and grant a new trial if the interest of justice so requires.”
When a motion for new trial is made on the ground that the
verdict is contrary to the weight of the evidence, the issues are far
different from those raised by a motion for judgment of acquittal. The
question is not whether the defendant should be acquitted outright, but
only whether he should have a new trial. The district court need not
view the evidence in the light most favorable to the verdict; it may
weigh the evidence and in so doing evaluate for itself the credibility of
the witnesses. If the court concludes that, despite the abstract
sufficiency of the evidence to sustain the verdict, the evidence
preponderates sufficiently heavily against the verdict that a serious
miscarriage of justice may have occurred, it may set aside the verdict,
grant a new trial, and submit the issues for determination by another
jury. This authority should be exercised sparingly and with caution;
nevertheless, the trial court has wide discretion in deciding whether to
grant a new trial in the interest of justice.
United States v. Lincoln, 630 F.2d 1313, 1319 (8th Cir. 1980). The district court
considered Walker’s motion for a new trial and, in exercising its wide discretion,
decided the interest of justice did not require a new trial. Not surprisingly, an
appellate court reviews the district court’s “denial of a motion for a new trial for
abuse of discretion and will reverse only if the evidence weighs heavily enough
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against the verdict that a miscarriage of justice may have occurred.” United States
v. Red Elk, 368 F.3d 1047, 1053 (8th Cir. 2004) (citation omitted).
We exert little effort in concluding the district court did not abuse its wide
discretion in denying Walker’s motion for a new trial. Sufficient evidence supports
the jury’s verdict. Walker’s conviction does not evince a serious miscarriage of
justice such that we must reject the jury’s verdict or the district court’s sense of
justice.
C. Officer’s Testimony
Walker contends “[t]he district court abused its discretion in allowing
Lieutenant Shoemaker to speculate that [Walker] was reaching for a gun during their
high-speed car chase.” Walker then maintains the district court’s erroneous
evidentiary decision prejudiced him, arguing Lieutenant “Shoemaker’s unfounded
opinion was the only evidence that [Walker] had knowledge of the weapon’s presence
and the intention to exercise dominion and control over it.” We review a district
court’s evidentiary decisions under an abuse of discretion standard,3 but, “[e]ven if
the district court erred in admitting the evidence, we will not reverse if the admission
of the evidence was harmless.” United States v. Velazquez-Rivera, 366 F.3d 661,
666 (8th Cir. 2004); see Fed. R. Crim. P. 52(a) (“Any error, defect, irregularity, or
variance that does not affect substantial rights must be disregarded.”). We see no
reason to discuss the niceties of the district court’s rulings on Walker’s motion in
limine and objection at trial. No obvious error of law or abuse of discretion is
apparent. Instead, we focus on the impact of the court’s rulings, and conclude any
error was harmless.
3
Although not critical to our holding in this case, our court recently has
explained that “[w]e review de novo the district court’s interpretation and application
of the rules of evidence, and review for an abuse of discretion the factual findings
supporting its evidentiary ruling.” United States v. Smith, 383 F.3d 700, 706 (8th Cir.
2004) (citing United States v. Blue Bird, 372 F.3d 989, 993 (8th Cir. 2004)).
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We reach this conclusion based on our firm belief Lieutenant Shoemaker’s
testimony that Walker reached for a gun or had a gun in his car was inconsequential
to the jury’s verdict. Had the district court precluded Lieutenant Shoemaker from
testifying she told another officer “there’s a gun in that car” or that she believed
Walker had been reaching for a gun during the high-speed chase, the jury was still
presented with evidence more than sufficient to convict Walker. The jury heard
evidence that (1) Walker owned the Mercury, which recently had been detailed with
no firearm being found; (2) Gipson, the driver, knew nothing about a firearm being
in the vehicle; (3) Walker lied about his name, age, date of birth and social security
number; (4) Walker, upon seeing a police officer look under the front seat, moved to
the driver’s seat and fled, leading Lieutenant Shoemaker on a dangerous, high-speed
car chase; and (5) during the chase, Walker twice leaned over to the front passenger
seat where the firearm was concealed. The record does not support the conclusion
the disputed portions of Lieutenant Shoemaker’s testimony made the case against
Walker.
III. CONCLUSION
For the foregoing reasons, we affirm the judgment of the district court.4
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4
Walker has requested leave to file a supplemental brief on the applicability of
Blakely v. Washington, 124 S. Ct. 2531 (2004), which we have denied. However, we
reserve ruling on the applicability of the Blakely reasoning to this case until the
Supreme Court issues its opinions in United States v. Booker and United States v.
Fanfan.
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