United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued November 12, 2004 Decided December 7, 2004
No. 03-3077
UNITED STATES OF AMERICA,
APPELLEE
v.
SERITA L. MORTON,
APPELLANT
Appeal from the United States District Court
for the District of Columbia
(No. 01cr00337-01)
Douglas Wham, appointed by the court, argued the cause
and filed the briefs for appellant.
Susan A. Nellor, Assistant U.S. Attorney, argued the
cause for appellee. With her on the brief were Kenneth L.
Wainstein, U.S. Attorney, and John R. Fisher and Roy W.
McLeese, III, Assistant U.S. Attorneys.
Before: GINSBURG, Chief Judge, and TATEL and
ROBERTS, Circuit Judges.
GINSBURG, Chief Judge: Serita Morton appeals her
conviction for possession of a firearm by a convicted felon, in
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violation of 18 U.S.C. § 922(g)(1). Morton argues the district
court erroneously denied her motion to suppress a police
officer’s testimony about incriminating statements Morton made
after being arrested. Morton also claims the district court
improperly permitted another police officer to give opinion
testimony at trial. Neither argument has merit.
I. Morton’s Incriminating Statements
The following facts are not disputed. Around 2:00 a.m.
on July 13, 2001, Officers Brian Hays and Christopher Beyer of
the Metropolitan Police Department pulled a vehicle over for
running a stop sign. Morton, the driver, did not have a valid
driver’s license. After the officers ordered Morton and the
passenger out of the vehicle, Officer Beyer noticed the tip of a
gun underneath the cushion on which Morton had been sitting.
Officer Hays then arrested Morton and called Officer Marvin
Parker to transport her to the police station. The officers
questioned the passenger but did not place him under arrest.
On the way to the station, Morton expressed concern
over what would happen to her vehicle. Officer Parker said her
vehicle would be impounded. Morton then became upset. She
told Officer Parker she would be released in the morning.
Officer Parker responded that she had been arrested for a serious
charge and that “she might not be getting out as quickly as she
thinks.” Morton told Officer Parker that her lawyer would help
her “beat the charge,” and when she did get out, “she would be
back down in the same area riding around with another gun” that
she kept at home. Morton also stated she did not like the police,
and “that’s why police officers get killed.”
Morton moved to suppress Officer Parker’s testimony
about her statements on the ground they were coerced. The
district court denied the motion, and Officer Parker testified
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against Morton at her trial, recalling the conversation for the
jury. Morton now appeals the district court’s ruling.
The Government admits Morton was in custody when
she made the incriminating statements and that no officer had
informed Morton of her rights under Miranda v. Arizona, 384
U.S. 436, 474 (1966). Morton does not dispute that she initiated
the conversation with Officer Parker and concedes that Officer
Parker did not ask her any questions. Morton nevertheless
contends Officer Parker’s conduct was “functionally equivalent”
to interrogation because Officer Parker should have known that
his comments were “reasonably likely to elicit an incriminating
response” from Morton. Rhode Island v. Innis, 446 U.S. 291,
301 (1980). The Government argues Officer Parker’s testimony
was admissible because Morton initiated the conversation and
her incriminating remarks were spontaneous and voluntary. See
United States v. Samuels, 938 F.2d 210, 214 (D.C. Cir. 1991).
“‘Interrogation,’ as conceptualized in the Miranda
opinion, requires a measure of compulsion above and beyond
that inherent in custody itself.” Innis, 446 U.S. at 300. Here, as
the Government maintains, Officer Parker did not “compel” or
even encourage Morton to incriminate herself. Officer Parker’s
statements -- that Morton’s vehicle would be impounded and
that she had been arrested on a serious charge and might not be
released as quickly as she thought -- were directly responsive to
what Morton had said and were not reasonably likely to elicit an
incriminating response. Morton, therefore, was not under
interrogation, see United States v. Bogle, 114 F.3d 1271, 1275
(D.C. Cir. 1997), and the district court properly denied her
motion to suppress.
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II. Officer Beyer’s “Opinion” Testimony
At trial, Morton’s strategy was to suggest the gun
belonged to her passenger. The prosecuting attorney asked
Officer Beyer why the passenger had not been arrested, and
Officer Beyer responded:
Based on the position of the gun being under Ms.
Morton’s right thigh, being on her side of the
console, which as I stated was pretty high and
also used as an arm rest, to us we believe that the
passenger did not have knowledge and would not
have been able to see the gun sitting there.
Morton argues the district court erred in permitting Officer
Beyer to opine whether the passenger knew about the gun under
Morton’s seat cushion and whether the passenger could have
seen the gun, testimony which “directly undermined” her
defense. According to Morton, the Government “failed to lay an
adequate foundation, or indeed any foundation at all, for Officer
Beyer’s opinion testimony.”
Morton’s trial counsel did not object to that portion of
Beyer’s testimony. Therefore, as both parties correctly observe,
in order for Morton to succeed on appeal she must demonstrate
that the trial court committed a plain error that affected her
substantial rights. Fed. R. Crim. P. 52(b); see also United States
v. Olano, 507 U.S. 725, 732 (1993). Where, as here, an
appellant failed to raise a contemporaneous objection at trial, a
reviewing court may correct “only particularly egregious errors,
those errors that seriously affect the fairness, integrity, or public
reputation of judicial proceedings.” United States v. Young, 470
U.S. 1, 15 (1985) (internal quotation marks and citations
omitted). Morton cannot make the requisite showing.
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First, as the Government argues, the admission of Officer
Beyer’s challenged statement is not plainly erroneous because
it is not apparent that Beyer actually offered opinion testimony.
Although Beyer testified that he believed the passenger did not
know the gun was in the vehicle, that testimony was not offered
to prove what the passenger actually knew; rather, the officer
was simply describing his reason for not having arrested the
passenger. A witness’s testimony about his own state of mind
is not opinion testimony. See United States v. Giovanetti, 919
F.2d 1223, 1226 (7th Cir. 1990) (“What [the witness] called his
‘opinion’ was actually a report of the contents of his mind, of
which people are normally assumed ... to have direct rather than
inferential knowledge”).
Second, we note that Morton’s failure to object to
Officer Beyer’s testimony for lack of foundation deprived the
Government of any opportunity to lay a proper foundation. See
Bartleson v. United States, 96 F.3d 1270, 1278 (9th Cir. 1996).
Morton does not argue the Government would have been unable
to lay a proper foundation if it had been called upon to do so.
Under these circumstances, the district court did not plainly err
in failing to strike Officer Beyer’s testimony sua sponte.
Finally, the Government maintains that even if the error
was plain, Morton cannot show prejudice. We agree. There was
ample evidence to support the jury’s determination that Morton
possessed the firearm without the portion of Officer Beyer’s
testimony that Morton now challenges. In addition to her own
incriminating statements, there was evidence that Morton owned
the vehicle in which the gun was found and, most important, the
gun was found under her thigh. In light of the evidence against
her, Morton cannot show the outcome of the trial would likely
have been different if the trial court had corrected the purported
error. See United States v. Sumlin, 271 F.3d 274, 281 (D.C. Cir.
2001).
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III. Conclusion
We agree with the district court that Officer Parker did
not interrogate Morton or coerce her into making any
incriminating statement. We also hold that Morton’s challenge
to Officer Beyer’s testimony does not survive plain error review.
Therefore the judgment of the district court is
Affirmed.