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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 13-12190
Non-Argument Calendar
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D.C. Docket No. 3:10-cr-00191-TJC-MCR-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee
versus
WILLIE LEE DANIELS,
Defendant-Appellant.
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Appeal from the United States District Court
for the Middle District of Florida
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(February 10, 2014)
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Before TJOFLAT, PRYOR and MARTIN, Circuit Judges.
PER CURIAM:
A jury found Willie Lee Daniels guilty of possession of a firearm by a
convicted felon, in violation of 18 U.S.C. §§ 922(g)(1), 924(a)(2), and was
sentenced as an armed career criminal to a prison term of 180 months. He appeals
his conviction and sentence. He challenges his conviction on the grounds that: (1)
the district court erred in denying his motion to suppress the firearm; (2) the court
abused its discretion in admitting an anonymous 911 call into evidence; (3)
admitting the 911 call into evidence violated his rights under the Confrontation
Clause; (4) the evidence was insufficient to support his conviction; and the (5) the
court abused its discretion in denying his motion for a new trial. He challenges his
sentence on the ground that the court erroneously based it in part on finding that
his prior conviction for aggravated fleeing and eluding constituted a violent felony
under the Armed Career Criminal Act (“ACCA”). We address in turn the
challenges to Daniel’s conviction and sentence.
I.
Motion to suppress.
“As rulings on motions to suppress involve mixed questions of fact and law,
the district court's factual findings are reviewed under the clearly erroneous
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standard, while that court’s application of the law is subject to de novo review.”
United States v. Ramos, 12 F.3d 1019, 1022 (11th Cir. 1994).
In challenging a search under the Fourth Amendment, the defendant bears
the burden of establishing “both a subjective and an objective expectation of
privacy” in the area or object searched. United States v. Segura-Baltazar, 448 F.3d
1281, 1286 (11th Cir. 2006). “The subjective component requires that a person
exhibit an actual expectation of privacy, while the objective component requires
that the privacy expectation be one that society is prepared to recognize as
reasonable.” Id. “[O]nly individuals who actually enjoy the reasonable
expectation of privacy have standing to challenge the validity of a government
search.” United States v. King, 509 F.3d 1338, 1341 (11th Cir. 2007).
The facts giving rise to Daniel’s motion to suppress as established at the
suppression hearing. Officer Hudson received a call from the police dispatcher, who
was responding to a 911 call, stating that a man was chasing a woman at gunpoint at an
apartment complex. He drove to and into the complex, without siren or lights
activated, and once inside the complex, he observed Daniels and a woman, later
identified as Clarissa Watson, walking toward his patrol car. Although Daniels and
Watson fit the dispatcher’s description of the individuals referred to in the 911 call,
to Hudson they “look[ed] apparently normal” and “casual.” He was therefore
“puzzled” and did not confront them. When he made eye contact with them,
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however, Daniels turned and ran around the corner of a nearby building. Hudson
became suspicious that Daniels could be the man with the gun, so he drove toward
Watson, exited his vehicle, and directed her to the ground, and radioed for backup.
At this point, Daniels returned from around the corner of the building; he had been
gone for only a few seconds.
After arresting Daniels, Hudson went around the corner of the building where
Daniels had disappeared and found a privacy fence. Looking over the top of the
fence, he saw a semiautomatic pistol, which he retrieved. That was the firearm
described in Daniels’s indictment.
At the suppression hearing, Daniels testified that he had been standing beside
Watson when Hudson ordered her to the ground. Because Hudson ordered her to the
ground at gunpoint, he “compl[ied].” He testified that he had never possessed a gun
that day, that he had seen the gun that he was charged with possessing only in
photographs, and that he had not gone behind the building or thrown anything over
the fence.
The district court, crediting Hudson’s testimony and rejecting Daniels’s, denied
Daniels’s motion to suppress on the ground that he lacked standing under the Fourth
Amendment. We conclude that the ruling did not constitute an abuse of discretion;
Daniels, having denied seeing or possessing the firearm, did not have an expectation of
privacy.
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The 911 call.
We review trial court rulings admitting hearsay into evidence for abuse of
discretion, United States v. Miles, 290 F.3d 1341, 1351 (11th Cir. 2002), and will
not reverse an erroneous evidentiary ruling unless “there is a reasonable likelihood
that [it] affected the defendant’s substantial rights.” United States v. Hawkins, 905
F.2d 1489, 1493 (11th Cir. 1990). “Hearsay” means a statement that: (1) is made
by the declarant outside the current trial or hearing; and (2) is offered into evidence
by a party to prove the truth of the matter asserted in the statement. Fed.R.Evid.
801(c). Hearsay is not admissible unless specifically excepted by statute or rule.
Fed.R.Evid. 802. Federal Rule of Evidence 803(1) provides that statements
“describing or explaining an event or condition, made while or immediately after
the declarant perceived it,” also known as “present sense impressions,” are
exceptions to the rule against hearsay. Fed.R.Evid. 803(1); see United States v.
Scrima, 819 F.2d 996, 1000 (11th Cir. 1987).
The district court did not abuse its discretion in admitting the anonymous
911 call because the statements constituted an exception to hearsay as the present
sense impressions of the caller.
The 911 call and the Confrontation Clause.
We review de novo the question of whether statements are “testimonial” for
purposes of the Confrontation Clause. United States v. Lamons, 532 F.3d 1251,
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1261 n. 15 (11th Cir. 2008). The Sixth Amendment protects an accused’s right, in
a criminal prosecution, to “be confronted with the witnesses against him.” U.S.
Const. amend. VI. The Clause’s protection applies to testimonial statements,
which may include statements taken by police during interrogations. Crawford v.
Washington, 541 U.S. 36, 51-52, 124 S.Ct. 1354, 1364, 158 L.Ed.2d 177 (2004). .
The Supreme Court has distinguished between nontestimonial and
testimonial statements in this manner:
Statements are nontestimonial when made in the course of police
interrogation under circumstances objectively indicating that the
primary purpose of the interrogation is to enable police assistance to
meet an ongoing emergency. They are testimonial when the
circumstances objectively indicate that there is no such ongoing
emergency, and that the primary purpose of the interrogation is to
establish or prove past events potentially relevant to later criminal
prosecution.
Davis v. Washington, 547 U.S. 813, 822, 126 S.Ct. 2266, 2273-74, 165 L.Ed.2d
224 (2006).
The admission of the 911 call into evidence did not infringe Daniels’s rights
under the Confrontation Clause because the caller’s statements were
nontestimonial; their primary purpose was to enable the police to meet an ongoing
emergency.
Sufficiency of the evidence.
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We review the sufficiency of the evidence de novo. United States v.
Maxwell, 579 F.3d 1282, 1299 (11th Cir. 2009). In determining whether there is
sufficient evidence to support a conviction, we “view the evidence in the light most
favorable to the government and decide whether a reasonable fact finder could
have reached a conclusion of guilt beyond a reasonable doubt.” United States v.
Herrera, 931 F.2d 761, 762 (11th Cir. 1991). “Credibility determinations are the
exclusive province of the jury.” United States v. Parrado, 911 F.2d 1567, 1571
(11th Cir. 1990). We draw all reasonable inferences tending to support the
prosecution’s case and assume that the jury made all credibility choices in support
of the verdict. Maxwell, 579 F.3d at 1299.
To obtain a conviction for being a felon in possession of a firearm, the
government must prove that (1) the defendant was a convicted felon, (2) the
defendant knowingly possessed a firearm, and (3) the firearm was in or affecting
interstate commerce. 18 U.S.C. § 922(g)(1); United States v. Deleveaux, 205 F.3d
1292, 1296-97 (11th Cir. 2000). “Possession can be shown by circumstantial as
well as direct evidence.” Crawford, 906 F.2d at 1535.
There was sufficient evidence to support Daniels’s conviction for possession
of a firearm by a convicted felon. Daniels’s girlfriend, Watson, testified that
Daniels took a gun from her dresser and later got rid of the gun behind a building
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in their apartment complex. Officer Hudson recovered a gun near that location,
and Watson identified it as the gun Daniels took from her apartment.
Motion for new trial.
A district court’s denial of a motion for a new trial is reviewed for abuse of
discretion. United States v. Perez-Oliveros, 479 F.3d 779, 782 (11th Cir. 2007). In
evaluating a motion for a new trial, the district court “may weigh the evidence and
consider the credibility of the witnesses.” United States v. Martinez, 763 F.2d
1297, 1312 (11th Cir. 1985). However, “[t]he court may not reweigh the evidence
and set aside the verdict simply because it feels some other result would be more
reasonable.” Id. at 1312-13. If the court concludes that the evidence
preponderates sufficiently heavily against the verdict that a serious miscarriage of
justice may have occurred, the court may set aside the verdict, grant a new trial,
and submit the issues for determination by another jury. Id. at 1312. Motions for
new trials based on the weight of the evidence are not favored and are granted
“sparingly,” “with caution,” and only in “exceptional cases.” Id. at 1313.
The district court did not abuse its discretion in denying Daniels’s motion
for a new trial. The evidence of guilt was strong and did not preponderate heavily
against the verdict.
II.
The Sentence: Aggravated Fleeing and Eluding under the ACCA.
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Whether a defendant’s prior conviction qualifies as a violent felony under
the ACCA is a question of law that we review de novo. United States v. Petite,
703 F.3d 1290, 1292 (11th Cir. 2013). The ACCA defines a “violent felony” as
“any crime punishable by imprisonment for a term exceeding one year” that . . . “is
burglary, arson, or extortion, involves use of explosives, or otherwise involves
conduct that presents a serious potential risk of physical injury to another.” 18
U.S.C. § 924(e)(2)(B).
Under Florida Statute § 316.1935(1), simple fleeing and eluding occurs
when “any person . . . willfully flees or attempts to elude law enforcement in an
authorized law enforcement patrol vehicle.” Fla. Stat. § 316.1935(1). Under
Florida Statute § 316.1935(4), a person commits aggravated fleeing or eluding
when that person:
in the course of unlawfully leaving or attempting to leave the scene of
a crash . . . , having knowledge of an order to stop by a duly
authorized law enforcement officer, willfully refuses or fails to stop in
compliance with such an order, or having stopped in knowing
compliance with such order, willfully flees in an attempt to elude such
officer and, as a result of such fleeing or eluding: (a) causes injury to
another person or causes damages to any property belonging to
another person . . . or . . . (b) causes serious bodily injury or death to
another person.
Fla. Stat. § 316.1935(4). In United States v. Petite, we addressed the issue of
whether the Florida offense of simple fleeing and eluding constitutes a violent
felony. 703 F.3d 1290, 1301 (11th Cir. 2013). We concluded that, in light of the
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Supreme Court’s detailed analysis in Sykes v. United States, __ U.S. __, 131 S.Ct.
2267, 180 L.Ed.2d 60 (2011), regarding the substantial risks inherent in any
confrontational act of intentional vehicle flight, simple vehicle flight presented a
serious risk of physical injury. Id.
In light of our prior determination that the Florida offense of simple fleeing
and eluding presents a potential risk of injury and constitutes a violent felony, the
significantly more serious Florida offense of aggravated fleeing and eluding also
constitutes a violent felony.
III.
For the foregoing reasons, Daniels’s conviction and sentence are
AFFIRMED.
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