United States v. Morris

1

UNITED STATES OF AMERICA, Plaintiff-Appellee, v. BRADLEY WAYNE MORRIS, Defendant-Appellant.

No. 23-7042

United States Court of Appeals, Tenth Circuit

August 16, 2024

(D.C. No. 6:21-CR-00034-JFH-1) (E.D. Okla.)

Before TYMKOVICH, EBEL, and EID, Circuit Judges.

ORDER AND JUDGMENT ^[*]

Timothy M. Tymkovich, Circuit Judge

Bradley Wayne Morris was convicted at trial of sexually abusing his young daughter, B.M. He was sentenced to 420 months' imprisonment and a lifetime of supervised release. Mr Morris's central claim on appeal is that prosecutorial misconduct during trial-improper vouching, asking the jury to act as the community conscience, and misstating the law-constitute plain error and warrant reversal of his conviction.

We affirm his conviction. Mr. Morris cannot show plain error by the district court. It was not plain or obvious that, without any objection, the court should have ordered a new trial. But we do, however, remand the case to the district court to correct the discrepancies between the oral and written conditions of Mr. Morris's supervised release.

I. Background

Mr. Morris's three children, triplets, were born in January 2010. The mother had primary custody of the children until 2014-at which point Mr. Morris gained custody due to a pending criminal case against the mother. In March 2020, Mr. Morris's daughter, B.M., attended a child-abuse prevention presentation at her school. After the presentation, ten-year-old B.M. approached the presenter and reported she was being abused at home, starting when she was seven or eight years old. The presenter reported the allegations of abuse to law enforcement and B.M. was examined by a forensic nurse. B.M. provided detailed testimony of her abuse, but the specific facts of such abuse are not relevant on appeal.

Mr. Morris was charged with two counts of aggravated sexual abuse in Indian Country pursuant to 18 U.S.C. § 2241(c), and two counts of abusive sexual contact in Indian Country pursuant to 18 U.S.C. § 2244(a)(5).^[1] At trial, the government presented testimony from various witnesses, including B.M. herself, who was by then a 12-year-old fifth grader. The government also presented testimony from B.M.'s 12-year-old brother, who testified that he witnessed his father abuse his sister, and a police officer who found pornography on Mr. Morris's phone that matched B.M.'s description of pornography her father would make her watch. The jury convicted Mr. Morris on all four counts.

At sentencing, the district court articulated the conditions of his supervised release. But the court's written judgment included additional supervised release conditions not orally pronounced at sentencing. The government concedes the orally pronounced sentence controls.

II. Discussion

Mr. Morris alleges that several instances of prosecutorial misconduct rendered his trial so unfair as to make his conviction a violation of due process. He argues the government improperly vouched for B.M., encouraged the jury to act as the community conscience, and misstated the law. He also argues the cumulative effect of these errors deprived him of a fair trial.

Mr. Morris contends the district court plainly erred in not sua sponte addressing the alleged misconduct. Because he failed to raise this objection we review for plain error. See United States v. Young, 470 U.S. 1, 14-20 (1985). "On plain-error review, the burden is on the defendant, and reversal is warranted only when: (1) the prosecutor's statement is plainly improper and (2) the defendant demonstrates that the improper statement affected his or her substantial rights." United States v. Vann, 776 F.3d 746, 759 (10th Cir. 2015) (internal quotation marks omitted). "An error is plain if it is so clear or obvious that it could not be subject to any reasonable dispute." United States v. Starks, 34 F.4th 1142, 1157 (10th Cir. 2022) (citations omitted). And "to be clear or obvious, the error must be contrary to well-settled law." Id. (quoting United States v. Taylor, 514 F.3d 1092, 1100 (10th Cir. 2008)). "In general, for an error to be contrary to well-settled law, either the Supreme Court or this court must have addressed the issue." Id. (quoting United States v. Ruiz-Gea, 340 F.3d 1181, 1187 (10th Cir. 2003)).

Vouching occurs when the prosecutor asks the jury to evaluate the evidence based on his or her personal assurances about the evidence. "[W]hen reviewing vouching for plain error, we weigh the seriousness of the vouching in light of the context of the entire proceeding." United States v. Harlow, 444 F.3d 1255, 1261 (10th Cir. 2006). "[R]eversal is appropriate only if, after reviewing the entire record, we conclude that the error is obvious and one that would undermine the fairness of the trial and result in a miscarriage of justice." United States v. Oberle, 136 F.3d 1414, 1421 (10th Cir. 1998) (citations omitted). "The relevant context includes the curative acts of the district court, the extent of the misconduct, and the role of the misconduct within the case." Starks, 34 F.4th at 1158 (citations omitted). Although "[w]e apply the plain error rule less rigidly when reviewing a potential constitutional error," id. at 1157 (internal quotation marks omitted), "reversal in the absence of contemporaneous objection is a rare exception rather than the rule," United States v. Hill, 749 F.3d 1250, 1267 (10th Cir. 2014).

Mr. Morris claims the prosecutor repeatedly and improperly vouched for B.M. in opening and closing arguments. "It is error for the prosecution to personally vouch for the credibility of its witnesses." United States v. Bowie, 892 F.2d 1494, 1498 (10th Cir. 1990).

But "[a]rgument or evidence is impermissible vouching only if the jury could reasonably believe that the prosecutor is indicating a personal belief in the witness' credibility, either through explicit personal assurances of the witness' veracity or by implicitly indicating that information not presented to the jury supports the witness' testimony." Id. See also United States v. Anaya, 727 F.3d 1043, 105354 (10th Cir. 2013) ("Vouching requires either . . . explicit personal assurances of the witness's veracity or . . . implicit[ ] indicat[ions] that information not presented to the jury supports the witness's testimony.") (citations omitted). Mr. Morris argues the prosecutor suggested a personal belief in B.M.'s credibility-through both explicit personal assurances and implicit indications.

Mr. Morris challenges four categories of statements from the opening and closing arguments. We address each in turn.

First, Mr. Morris argues the prosecutor provided explicit personal assurances of B.M.'s credibility in opening statements. The alleged improper statements are italicized below.

We're going to call B.M. to come testify and she's going to tell you about the things that her father did to her, and you decide, do I believe her?

Now, I submit to you that as you're listening to the evidence the things that you should keep in mind when you're assessing B.M.'s credibility, we've talked about it. How can you tell if someone is telling the truth? How do you know to believe them?

The first thing I'm going to ask you to pay attention to as you're listening to the evidence are the details that she gives. B.M. is going to tell you about these incidents that happened. She's going to be able to give you a level of detail that I think lends credibility to what she's saying.

Her account is going to be very credible and very detailed about what she remembers happening to her. ...

So, members of the jury, I think when you take a look after you listen to all the evidence and you're able to assess B.M., you're able to assess B.M.'s testimony and you see the testimony from the nurse regarding the physical findings, when you look at all of that together I'm convinced that at the end of this trial you'll find beyond a reasonable doubt that the defendant -- that B.M. is telling the truth and we're going to ask you to find the defendant guilty on all four counts of aggravated sexual abuse and abusive sexual contact.

R. Vol. I. at 361-65 (emphasis added).

Although the prosecutor used "I" during opening statements, we have made clear that this is not a per se due process violation. See United States v. Jones, 468 F.3d 704, 708 (10th Cir. 2006) (concluding the use of personal pronouns in closing argument was not a violation). It is also not plain that, in context, the prosecutor was attempting to express a personal opinion on B.M.'s credibility. Instead, the better interpretation is that the prosecutor was expressing that B.M.'s testimony would be very detailed. And "it is not improper for a prosecutor to direct the jury's attention to evidence that tends to enhance or diminish a witness's credibility." Thornburg v. Mullin, 422 F.3d 1113, 1132 (10th Cir. 2005). That said, statements such as these invite judicial scrutiny and should be avoided.

While we doubt there was error, Mr. Morris certainly cannot show any plain error-let alone error affecting substantial rights. An error seriously affects the defendant's substantial rights "when the defendant demonstrates that there is a reasonable probability that, but for the error claimed, the result of the proceeding would have been different." United States v. Woods, 764 F.3d 1242, 1245 (10th Cir. 2014) (citations omitted). "A reasonable probability is a probability sufficient to undermine confidence in the outcome . . . [and] [i]t is the defendant's burden to make this showing, even in a case of alleged constitutional error." Starks, 34 F.4th at 1157 (citations omitted). Mr. Morris has not met his burden.

"[F]actors relevant to determining whether the improper commentary affected the fairness of the trial include whether the...