United States v. Heard

951 F.3d 920

UNITED STATES of America, Plaintiff - Appellee

v.David Tachay HEARD, also known as Tashay, also known as Kill Bro Heard, also known as Kill Bro, Defendant - Appellant

No. 18-3411

United States Court of Appeals, Eighth Circuit.

Submitted: November 15, 2019

Filed: March 3, 2020

Rehearing and Rehearing En Banc Denied April 21, 2020^*

Lyndie Freeman, Assistant U.S. Attorney, U.S. Attorney's Office, Timothy Vavricek, Lisa C. Williams, Assistant U.S. Attorneys, U.S. Attorney's Office, Northern District of Iowa, for Plaintiff-Appellee.

David Tachay Heard, pro se.

Raphael M. Scheetz, Cedar Rapids, IA, for Defendant-Appellant.

Before COLLOTON, WOLLMAN, and BENTON, Circuit Judges.

BENTON, Circuit Judge.

A jury convicted David Tachay Heard on four counts: (1) possessing a firearm in violation of 18 U.S.C. § 922(g)(1) and § 924(a)(2) ; (2) possessing with intent to distribute a controlled substance in violation of 21 U.S.C. § 841(a)(1), § 841(b)(1)(D), and § 851 ; (3) possessing a firearm in furtherance of a drug trafficking crime in violation of 18 U.S.C. § 924(c)(1)(A) and § 924(c)(1)(C)(i) ; and (4) possessing a stolen firearm in violation of 18 U.S.C. § 922(j) and § 924(a)(2). He appeals the conviction. Having jurisdiction under 28 U.S.C. § 1291, this court affirms.

On the evening of July 30, 2017, Justin Summers was a passenger in the front seat of an SUV driven by his wife on Redbud Road. Around 7:20 pm, he called 911 reporting he had just seen a parked car with "substantial front-end damage." Next to the driver’s side of the car was a man Summers described as a "black male," "anywhere from maybe 5’9’’ to 6-foot," with a white hat and dark clothes. Summers saw the man throw something "small" into "the weeds" on the side of Redbud Road.

Concerned, Summers and his wife "came really slow up on the car ... looking to see if he needed some help or if there was anybody else in the car that needed help." The man "tipped his head back so [Summers] could see his face really good" and "very clearly." He was "looking for something in his passenger side" and "was very agitated, more so than what you would be if you were in an accident." Summers and his wife "slowed down almost to a stop next to his car and he basically through a facial expression made it very clear that he didn’t want us there." As Summers and his wife drove away, Summers saw the man throw "a semiautomatic pistol into the ... weeds or the ditch there." Summers said no one else was in the car or "around at all."

Arriving at the scene, police found Heard, who is five-foot-eight-inches tall, wearing a black t-shirt and blue jeans. They searched the wooded area near the car and found a bag of marijuana with 27 individually packaged baggies and a fully loaded "extremely clean" firearm with "no dirt or debris on it." They arrested Heard.

Around 8:45 pm, officers asked Summers to return to the scene. He arrived at dusk. Officers positioned Heard (handcuffed with a spotlight shining on him) 20 to 25 feet from Summers. Officers told Summers "to have an open mind, and to tell them if it was or was not the person that [he] saw." Summers "didn’t hesitate," saying that "everything was exactly the same about him, except that ... he was not wearing the hat." During the identification, Heard gave Summers the "same hard looks" he had given him earlier in the evening.

The next evening, Heard called his girlfriend from jail. The call was recorded. Heard told her that Summers would not have been able to identify him because he was not wearing his hat during the identification process.

During the investigation, police learned that the firearm belonged to Heard’s cousin. When interviewed, the cousin said he kept the firearm in his basement and had not given Heard permission to take it. However, the cousin said Heard had visited the basement to "make music."

Before trial, the district court¹ denied Heard’s motion to suppress Summers’ eyewitness identification. The court also declined to give a jury instruction on eyewitness-identification testimony. At trial, the government introduced evidence including: (1) Summers’ testimony; (2) the transcript of Heard’s call to his girlfriend from jail; (3) the ownership of the firearm; (4) testimony of a cooperating witness that Heard had sold him a firearm, tried to sell him the firearm found at the scene, and possessed and offered to sell marijuana; and (5) testimony of Heard’s girlfriend’s mother that she gave him $10,300 to pay back loans for people who "want their money back," "are not messing around," and beat him up for failure to pay.

Heard moved for judgment of acquittal after the submission of the government’s evidence stating, "[W]e would move for a judgment of acquittal. I would focus on Count 4, the possession of a stolen firearm in this case." At the conclusion of all evidence, Heard renewed his motion, stating, "[T]he defendant would renew the motion, specifically as to Count 4, that’s—that’s the one that has controversy about it. There’s certainly evidence on 1, 2, and 3, even though we would not say it’s going to be sufficient, but I still think there is significant threshold problems that the government has on Count 4." The district court denied the motion.

After the government’s closing argument, Heard’s counsel informed the court that Heard himself wanted to deliver his closing argument. The court immediately excused the jury. Outside the presence of the jury, Heard’s attorney reiterated that Heard "desires, demands, to present the closing argument in this case." His attorney advised him that he must "stay within the evidence that has been presented" and not "testify about things that have not been previously presented." He also advised that he "runs the risk that, if he goes outside those boundaries, that the Court could potentially strike his statement and not allow any sort of potential closing statement to be made by the defense in this case." The government responded, voicing "significant concerns based on his behavior yesterday after the Court repeatedly instructed him to stop doing things and he kept doing it, talking over counsel and talking over the Court."

The court then explained the procedure for closing argument. It warned Heard that if he violated orders, he would not be allowed to finish the closing argument. The court also cautioned him:

Closing arguments are very important in a case, and they have to be delivered in a way that is convincing, courteous, civil, but persuasive. And [defense counsel] has gone to law school. He has appeared for defendants in my court for 15 years and other judges of this district. He knows what juries will believe and what they won’t believe.

....

I think that you are making a huge mistake, but the Constitution does guarantee you the right to make this closing argument if you want to.

....

[The defendant] knows the ups and downs and apparently has made his own decision that this is what he wishes to do. And although I don’t agree with his analysis of what’s best for him, it’s his life, so I will permit it, provided that he abide by the Court’s rules.

The court then conducted an ex parte hearing with Heard and his attorney. His attorney said:

Certainly, I would say he’s running a very significant risk by choosing to make his own closing argument. Mr. Heard, however, has frequently throughout my representation indicated his knowledge of the facts and circumstances. ... [H]e certainly is well aware of the circumstances and facts of this particular matter, and he has that constitutional right.

The court concluded by asking, "And is it your desire, Mr. Heard, in fact, your demand, that you be permitted to make your own closing argument?" Heard answered, "Yes, ma’am. I just need about—yes, Your Honor. I just need maybe 10 minutes to just—to just get my delivery together." The court granted the request. Heard gave his closing argument. After the government’s closing argument, Heard renewed his motion for judgment of acquittal, stating "We would again renew the motions previously made at the close of the evidence for a judgment of acquittal, especially as to Count 4." The court denied the motion.

The jury convicted Heard on all four counts. Heard did not renew his motion for judgment of acquittal. He appealed, challenging the conviction and arguing: (1) the district court erred in admitting eyewitness-identification evidence; (2) the district court abused its discretion in failing to instruct the jury on eyewitness identification; (3) the trial violated his Sixth Amendment right to counsel; and (4) the evidence was insufficient to convict.

I.

Heard believes the district court erred in admitting Summers’ eyewitness testimony. He complains the "show-up" identification was "clearly impermissibly suggestive" because officers called Summers back to the scene of the crime, asking him suggestive questions while Heard was handcuffed with a bright light shining "directly" on his face. This court reviews the denial of a motion to suppress de novo, but reviews "underlying factual determinations for clear error, giving due weight to the inferences of the district court and law enforcement officials." United States v. Leon , 924 F.3d 1021, 1025 (8th Cir. 2019).

"Police officers are not limited to station house line-ups if there is an opportunity for a quick, on-the-scene identification. Show-up identifications are essential to free innocent suspects and to inform the police if further investigation is necessary. Thus, even if the line-up is inherently suggestive, the line-up will be admissible as long as it is not impermissibly suggestive and unreliable." United States v. Mitchell , 726 F. Appx. 498, 501 (8th Cir. 2018) (cleaned up). See generally Sexton v. Beaudreaux , ––– U.S. ––––, 138 S. Ct. 2555, 2559, 201 L.Ed.2d 986 (2018) ("To be impermissibly suggestive, the procedure must give rise to a very substantial likelihood of irreparable misidentification." (internal quotation marks omitted)).

The show-up...