Summary
rejecting claim that trial court abused its discretion by calling a recess during a witness's testimony where Defendant's counsel did not object to the recess
Summary of this case from Thompson v. AfamasagaOpinion
No. 12-30008 D.C. No. 4:11-cr-00056-SEH-1
09-07-2012
UNITED STATES OF AMERICA, Plaintiff - Appellee, v. TYRELL JAMES HENDERSON, Defendant - Appellant.
NOT FOR PUBLICATION
MEMORANDUM
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
Appeal from the United States District Court
for the District of Montana
Sam E. Haddon, District Judge, Presiding
Seattle, Washington
Before: SCHROEDER and GOULD, Circuit Judges, and FRIEDMAN, Senior District Judge.
The Honorable Paul L. Friedman, Senior United States District Judge for the District of Columbia, sitting by designation.
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Tyrell James Henderson appeals from his conviction for Assault on a Federal Officer, in violation of 18 U.S.C. §§ 111(a), (b). Henderson challenges the district court's interruption of his counsel's closing argument, questioning of defense witness Isaac Saenz after the government's cross-examination of Saenz, and decision to call a ten-minute recess in the middle of Agent Dan Love's testimony.
We review Henderson's appeal of the district court's interruption of defense counsel's closing argument for abuse of discretion. United States v. Lazarenko, 564 F.3d 1026, 1043 (9th Cir. 2009). The district court interrupted when defense counsel referred to the lack of a video camera on the police vehicle. The court was rightly concerned that counsel would describe what a camera might have shown and then argue facts that were outside the record. There was no abuse of discretion.
Henderson did not object to the district court questioning Saenz and calling a recess in the middle of Love's testimony; we review those issues for plain error. United States v. Morgan, 376 F.3d 1002, 1007 (9th Cir. 2004). The district court did not plainly err in questioning the witness, whose testimony had been confusing. The questions were clarifying in nature. The court's later observation, that one witness must have lied, was intended for counsel and was made outside the presence of the jury.
Calling a ten-minute recess during the middle of the afternoon, in the midst of Agent Love's testimony, was reasonable and within the court's discretion. Defendant has not shown that there was any more appropriate time for an afternoon recess or that he was prejudiced in any way by the court's action.
AFFIRMED.