United States v. Parker

11 F.4th 593

UNITED STATES of America, Plaintiff-Appellee,

v.Odonis D. PARKER, Defendant-Appellant.

No. 20-1231

United States Court of Appeals, Seventh Circuit.

Submitted¹ February 17, 2021

Decided August 30, 2021

David E. Hollar, Attorney, Office of the United States Attorney, Hammond, IN, for Plaintiff-Appellee.

Thomas W. Patton, Attorney, Office of the Federal Public Defender, Peoria, IL, Colleen McNichols Ramais, Attorney, Office of the Federal Public Defender, Urbana, IL, for Defendant-Appellant.

Before Sykes, Chief Judge, and Flaum, and Rovner, Circuit Judges.

Rovner, Circuit Judge.

Selina Schutt, her three young children, and her boyfriend, Jamayl Wash, were driving into her apartment complex in Fort Wayne, Indiana, when shots rang out. Wash's Hyundai Sonata was hit with a barrage of bullets, including one that grazed the top of his scalp. Schutt saw her recently estranged ex-boyfriend, Odonis Parker, shooting from the side of the building. She grabbed her children, ran, and called 911 reporting that her ex-boyfriend, "Odonis Parker," had shot up a car and was trying to shoot her friend.

When the police arrived, Schutt reported that her ex-boyfriend, Parker, who was wearing a red hooded sweatshirt, shot at her. Two witnesses in a nearby apartment, Devin Polston and Barbara Rogan, could not identify the shooter by name, but they agreed that he was wearing an orange or red hoodie and carrying a big, long gun that required two hands to hold. Rogan saw the shooter run up some stairs to the highest floor of a nearby apartment building. Wash had never met Parker and also could not identify the shooter but testified that the shooter was wearing an orange or red hoodie.

The police officers’ investigation of the scene uncovered a live round of 7.62 ammunition and a spent shell casing near the Sonata, and bullet holes in the grille on the front of the car. They found a cell phone lying in the grass near Schutt's apartment building and a Ford Fusion in the parking lot with a red hoodie lying across the center console.

As the police were collecting evidence, Parker walked out of a neighboring apartment building, and when Schutt identified him as the shooter, the police took him into custody. He had two sets of keys with him. As the police pushed the buttons on one key fob, the lights of a Ford Fusion alighted, and the trunk popped open. The police officers towed the Fusion to the crime scene garage where they found the following: a men's 2XL red Chicago Bulls hooded sweatshirt between the console and the driver's side seat, Parker's debit card, and several pieces of paperwork with Parker's name on them, and an SKS rifle in the trunk with one magazine and a round of ammunition in the chamber. There was no evidence of any tampering with or damage to the door or trunk locks or the ignition.

A grand jury charged Parker with being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1). The only element of the crime at issue was whether Parker possessed the firearm. Prior to trial, Parker filed a motion to which the government objected, requesting voir dire questioning of prospective jurors on various topics including the importance they might assign to DNA evidence. The district court judge declined to ask these questions, finding them unnecessary to seating a fair and impartial jury and noting his concern with asking questions that advocate a party's theory of the case (in this case, according to the judge, a generalized theory that the government's work was sloppy). R. 18 at 18–19. And, consequently, the district court barred Parker from discussing a lack of forensic testing during his opening statement, until such time as the court could determine whether that line of questioning was admissible. The court stated that if the defense laid the proper foundation for an attack on the forensic work, it could ask those types of questions of the witnesses during cross examination and then include argument about the lack of forensic testing in the closing argument.

At trial, the owner of the Ford Fusion testified that on the day of the shooting she loaned the car to her then-boyfriend Parker, among others, and that the keys the police found with Parker were the only set of keys to the vehicle. She also testified that she had never before seen the gun found in the trunk. The Indiana State Police forensics firearm examiner testified at trial that the spent cartridge and live round found near Wash's car were fired from the rifle found in the trunk of the Ford Fusion.

The government also called the crime scene investigator, Robert Wilcox, who testified that he submitted the firearm and magazine for fingerprint testing, but did not submit any bullets, explaining that generally it is not possible to procure fingerprint evidence from bullets. He also confirmed that he did not check the firearm for any visible prints or attempt to collect hair and fiber samples from the sweatshirt. During cross examination, Parker's counsel asked Wilcox if he collected any DNA samples from the gun. The government objected arguing that, as neither side was calling a DNA expert, and DNA evidence was not before the jury, the question was inappropriate. The district court prohibited the question under Federal Rule of Evidence 403, noting that Parker was not challenging the reliability of any specific investigative steps the government took and was instead impermissibly arguing generally that the government's investigation was shoddy because it did not attempt DNA testing. The district court surmised that this would introduce significant confusion, as it was inviting the jury to speculate as to what the tests might reveal.

Finally, the police department's latent fingerprint examiner testified that he found no prints of value on the gun or magazine. He testified that over the course of eighteen years and thousands of examinations, it was uncommon to find prints on firearms, and that he had never found a usable print on a live round or shell casing.

In closing, Parker argued that the government failed to prove its case as no fingerprints were found on the gun and the identification from Schutt, his biased ex-girlfriend, was...