[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
Aug. 21, 2008
No. 08-10912 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 07-00194-CR-KD
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
CHARLES REED ADAMS,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Alabama
_________________________
(August 21, 2008)
Before CARNES, BARKETT and FAY, Circuit Judges.
PER CURIAM:
Charles Reed Adams appeals his conviction for possession of a firearm by a
prohibited person, in violation of 18 U.S.C. § 922(g)(1). Adams argues that the
prosecutor’s statements during closing argument amounted to prosecutorial
misconduct requiring reversal. Specifically, Adams claims that he was prejudiced
by the prosecutor’s comments that: (1) Adams and Joseph Sykes were friends;
(2) Sykes perjured himself in order to “help out his buddy”; and (3) if the jury
believed Adams’s defense, the prosecutor may have some Florida property to sell
it. For the reasons set forth more fully below, we affirm.
At trial, Officer Darrell Tucker testified for the government that, just before
8:00 p.m. on November 17, 2006, he and some other officers were responding to
complaints at the Roger Williams Housing Project. Adams started running as the
police pulled into the parking lot. As Officer Tucker chased him, he saw Adams
reaching into his waistband or jacket pocket “to retrieve something to try to throw
it down.” Officer Tucker stated Adams attempted to enter an apartment but then
ran around the side of the apartment before finally complying by lying on the
ground. As Officer Tucker rolled Adams over, he noticed a weapon lying
underneath Adams.1
For his defense that he did not possess the firearm, Adams relied solely upon
1
No fingerprints were found on the gun, and the parties’ stipulated that Adams was a
convicted felon and that the firearm had affected interstate commerce.
2
the statements contained in the affidavit of Sykes.2 After he read the affidavit into
evidence, Adams rested his case. Adams argued in his closing statement that
Sykes dropped the gun and that it was “bad luck [for Adams] to go down or to be
put down on the ground where Joseph Sykes had dropped the gun.”
During its rebuttal argument, the government stated:
how many of y’all are right now thinking, some guy running from the
police turns the corner and just happens to fall right down on the gun
that somebody left? Just happened to fall in that same spot that
somebody left a gun an hour and a half later.
Because if you recall[] in the affidavit, Mr. Sykes says – Mr. Sykes
says I left the gun there at 9:30. This all happen[s] at 8 o’clock at
night. And as [the government] said earlier, this man can’t describe
the gun in his affidavit.
You know what happened here. This man can’t possess a gun. Mr.
Sykes, can, I guess, possess a gun because he said here in his affidavit
that he had a gun, walking through the project that night and dropped
it on the ground.
What happened here folks is simply this, because he said in here, I
was walking through the project and before the police could see me I
dropped a gun. Basically what happened here, you have a friend of
Mr. Adams who drew up an affidavit . . .
2
The affidavit, which was read into evidence, provided, “My name is Joseph Sykes . . . .
On Friday[,] November 17, 2006[,] at approximately 9:30 p.m.[,] I was walking through the
Roger Williams project. I observed four police cars pulling into the parking lot where I live.
And[,] before they could see me, I took my pistol out of my pocket and dropped it on the ground
and kept walking. I intended to go back and get it after they left. I would have told them it was
mine – I would have told them that it was mine[,] but there was no one available to stay with
they [sic] children. Dated this 4th day of December, 2006. Joseph Sykes. Sworn before a
notary.”
3
Adams objected, stating: “it’s fact not in evidence. No testimony,” but the court
overruled the objection. The government continued:
Got a Buddy here of Mr. Adams who drew up this affidavit to help
out a friend. That is what it amounts to. Couldn’t get his fact[s]
straight[], because he doesn’t know the facts. He sat down and wrote
out something or had somebody type it up for him and he just signed
it.
That’s the defense folks. That’s what it boils down to. Because you
have got to believe, if you are a gambler, I’m not, but if you are a
gambler, you have to believe that somebody running through the
darkness of the neighborhood that night, being chased by the police,
trying to get into an apartment, going around the corner, just happened
to fall smack dab down on a gun that somebody else left. If you
believe that, maybe there is some property down in Florida they might
want to sell you.
The jury found Adams guilty, and the court sentenced him to 82 months’
imprisonment.
We review a prosecutorial misconduct claim de novo because it is a mixed
question of law and fact. United States v. Eckhardt, 466 F.3d 938, 947 (11th Cir.
2006), cert. denied, 127 S.Ct. 1305 (2007). “Reversal on the basis of prosecutorial
misconduct requires that the misconduct be so pronounced and persistent that it
permeates the entire atmosphere of the trial.” United States v. Weinstein, 762 F.2d
1522, 1542 (11th Cir. 1985) (quotation omitted). “When the record contains
sufficient independent evidence of guilt, any error is harmless.” Eckhardt, 466
F.3d at 947.
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“To establish prosecutorial misconduct, ‘(1) the remarks must be improper,
and (2) the remarks must prejudicially affect the substantial rights of the
defendant.’” Id. (citation omitted). “In order to assess the prejudicial impact of a
prosecutor’s statements, we must evaluate them in the context of the trial as a
whole and assess their probable impact on the jury.” United States v. Hernandez,
145 F.3d 1433, 1438 (11th Cir. 1998).
To meet the substantial prejudice prong, the improper comments must have
“so infect[ed] the trial with unfairness as to make the resulting conviction a denial
of due process.” United States v. Eyster, 948 F.2d 1196, 1206 (11th Cir. 1991)
(quotation omitted). We have stated that “[a] defendant’s substantial rights are
prejudicially affected when a reasonable probability arises that, but for the
remarks, the outcome of the trial would have been different.” Eckhardt, 466 F.3d
at 947. “A reasonable probability is a probability sufficient to undermine
confidence in the outcome.” Eyster, 948 F.2d at 1207 (quotations and brackets
omitted).
“[A] prejudicial remark may be rendered harmless by curative instructions to
the jury.” Weinstein, 762 F.2d at 1542; see also United States v. Smith, 918 F.2d
1551, 1562 (11th Cir. 1990) (stating “[b]ecause statements and arguments of
counsel are not evidence, improper statements can be rectified by the district
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court’s instruction to the jury that only the evidence in the case be considered”);
Shriner v. Wainwright, 715 F.2d 1452, 1459 (11th Cir. 1983) (noting that “with a
properly instructed jury, there is nothing to show the jury relied on the prosecutor’s
remarks,” and citing Grizzell v. Wainwright, 692 F.2d 722, 726-27 (11th Cir.
1982) for proposition that a jury is presumed to follow the jury’s instructions as to
evidence it may consider). “[C]onsiderable weight must be given to the trial
court’s assessment of the prejudicial effect of the remarks in question.” Weinstein,
762 F.2d at 1542.
During closing arguments, “[a] prosecutor is forbidden to make improper
suggestions, insinuations[,] and assertions calculated to mislead the jury and may
not appeal to the jury’s passion or prejudice.” United States v. Rodriguez, 765
F.2d 1546, 1560 (11th Cir. 1985) (citation, quotations, and punctuation marks
omitted). “While a prosecutor may not exceed the evidence in closing argument
. . ., he may state conclusions drawn from the evidence[, and] . . . . there is no
prohibition on ‘colorful and perhaps flamboyant’ remarks if they relate to the
evidence adduced at trial.” United States v. Bailey, 123 F.3d 1381, 1400 (11th Cir.
1997). Moreover, a prosecutor may “assist the jury in analyzing, evaluating, and
applying the evidence” and, therefore, may “urge[ ] the jury to draw inferences and
conclusions from the evidence produced at trial.” United States v. Johns, 734 F.2d
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657, 663 (11th Cir. 1984) (emphasis omitted); see also United States v. Nixon, 918
F.2d 895, 905 (11th Cir. 1990) (determining that the “prosecutor’s statements were
well within the government’s discretion to urge a reasonable conclusion based on
admitted evidence”). “[A]n attorney’s statements that indicate his opinion or
knowledge of the case as theretofore presented before the court and jury are
permissible if the attorney makes it clear that the conclusions he is urging are
conclusions to be drawn from the evidence.” Johns, 734 F.2d at 663.
The prosecutor’s remarks during closing arguments were not improper
because the remarks merely urged the jury to draw inferences and conclusions
from the evidence. See Johns, 734 F.2d at 663. The jury was required to
determine whether or not the information contained in Sykes’s affidavit was
truthful, and, therefore, whether to believe Adams’s defense that it was “bad luck”
that Adams happened to go down at the precise location where Sykes allegedly
dropped the firearm.
However, given that Sykes’s did not accurately depict some of the relevant
facts in his affidavit, it was reasonable for the government to suggest that, perhaps,
Sykes did not know some of those facts and was just trying to “cover” for a friend.
The remarks were reasonable conclusions drawn from evidence adduced at trial
and could “assist the jury in analyzing, evaluating, and applying the evidence.”
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See Bailey, 123 F.3d at 1400; Johns, 732 F.2d at 663. Moreover, it cannot be said
that the isolated statements made only during the prosecutor’s closing rebuttal, and
after the court overruled Adams’s objection, were “so pronounced and persistent
that [the comments] permeate[d] the entire atmosphere at trial.” See Weinstein,
762 F.2d at 1542.
Nonetheless, even if the prosecutor’s statements were improper, any error by
the district court in allowing those statements was rendered harmless by the court’s
curative instructions to the jury, which the court gave both at the start and end of
the trial, warning that “anything the lawyers say is not in evidence.” See
Weinstein, 762 F.2d at 1542. Thus, the statements, if improper, were rectified by
the court’s instructions, and, in light of the instructions, there is nothing to suggest
that the jury improperly relied on the prosecutor’s statements. See Smith, 918 F.2d
at 1562; Shriner, 715 F.2d at 1459.
In light of the foregoing, Adams’s conviction is
AFFIRMED.
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