Opinion
Criminal No. 01-163 (JRT/FLN)
May 6, 2002
Rachel Paulose, Assistant United States Attorney, Office of the United States Attorney, Minneapolis, MN, for plaintiff.
Virginia Villa, Assistant Federal Public Defender, Office of the Federal Public Defender, Minneapolis, MN, for defendant.
MEMORANDUM OPINION AND ORDER DENYING DEFENDANT'S MOTION FOR A NEW TRIAL
On November 29, 2001, defendant Ira Earl Johnson was convicted by a jury of being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1), as charged in a one-count federal indictment. This matter is now before the Court on defendant's motion for a new trial pursuant to Federal Rule of Criminal Procedure 33. For the reasons set forth below, the motion is denied.
BACKGROUND
Prior to trial, defendant moved to suppress statements and evidence obtained as a result of a search and seizure that he claims was unlawful. The Magistrate Judge conducted two separate hearings during which the facts of the initial stop, which defendant claims was illegal, were developed.
On the morning of April 24, 2001, Hennepin County Deputy Sheriff Jason Engeldinger ("Engeldinger") was on duty with two other law enforcement officers at the Century Plaza at 300 South Twelfth Street in downtown Minneapolis. Engeldinger, who testified at the first hearing, stated that he observed an interaction between defendant and a woman, who was later identified as Willie Pearl Evans ("Evans"). According to Engeldinger, the two people seemed to be having a fight. Evans appeared frightened and bent backwards over the hood of a Jeep, while defendant faced her, yelling obscenities only a few inches from her face. Defendant noticed a police car passing by, and he yelled obscenities and made obscene gestures at the car. Engeldinger suspected that an assault might have been in progress, so he approached the couple and asked to see defendant's identification.
Evans, on the other hand, testified that she was not bent backwards over the car, but was simply leaning on the car while smoking a cigarette. She further stated that she and defendant were not having a fight, but they did speak loudly, and may have used profanities in the course of their normal conversation. She maintained, however, that defendant was not angry at her, and did not yell at her or assault her. Evans also stated that she never saw defendant make obscene gestures at a passing squad car.
Although Engeldinger and Evans gave conflicting testimony concerning the nature of the conversation between Evans and the defendant, they testified consistently concerning the manner in which Engeldinger approached the defendant and asked him for identification. Engeldinger described the encounter as follows:
Q: (Defense Counsel): And you told him come over here, I want to talk to you, is that right?
A: (Engeldinger): I asked him to come over and talk to me.
Q: At that point, you asked him for his identification?
A: Yes, ma'am.
July 18, 2001 Motion Hearing Trans. at 18 (emphasis added). Evans similarly testified that Engeldinger made a request for identification, not any type of demand:
[Deputy Engeldinger] said, `May I speak with you? Can I see some ID?' And [defendant] said `Sure.' . . . [Deputy Engeldinger] stood like a couple feet back, and he requested identification from [defendant].
Aug. 22, 2001 Motion Hearing Trans. at 8 (emphasis added). The record next reveals that defendant handed Engeldinger his driver's license, but then turned and began to flee on foot. Engeldinger ran after defendant and called for him to stop. Defendant did not stop, but tripped on a curb, and before he could continue fleeing, Engeldinger tackled him. While on the ground, defendant's hands were tucked under his body. He refused to obey Engeldinger's instructions to slowly remove his hands, despite Engeldinger's threats to deploy pepper spray. Engeldinger sprayed defendant's face with pepper spray, and defendant removed his hands and allowed himself to be handcuffed. During this process, defendant made incriminating statements. Defendant had not been given Miranda warnings, but his statements were not in response to any questions from Engeldinger. After defendant was handcuffed, Engeldinger rolled defendant to his side and saw a gun lying beneath defendant.
On November 13, 2001, this Court denied defendant's motion to suppress, concluding that the initial encounter between defendant and Engeldinger was consensual and therefore did not implicate any Fourth Amendment interest. United States v. Johnson, No. 01-163, 2001 WL 1640041 (D.Minn. Nov. 13, 2001). Evaluating the evidence based on the standard and factors set forth in United States v. Mendenhall, 446 U.S. 544, 554 (1980), the Court concluded that, although Engeldinger was in uniform and was accompanied by two other security officers when he approached defendant, there is no evidence that Engeldinger's conduct was coercive, that he physically touched defendant, or that he indicated in any way that defendant must comply with his requests. In addition, both Engeldinger and Evans testified that Engeldinger asked defendant for his identification and Evans did not suggest that Engeldinger acted in a coercive manner toward defendant. On these facts, the Court rejected defendant's contention that Engeldinger's "`tone and authority . . . demanded compliance.'" Id. at *4.
Prior to the Court's order, the Magistrate Judge issued two reports and recommendations. In a report and recommendation dated July 27, 2001, the Magistrate Judge concluded that Engeldinger had reasonable belief that an assault was in progress and thus had a sufficient basis to ask defendant for his identification. After reopening the hearing to hear the testimony of Ms. Evans, the Magistrate Judge issued a supplemental report and recommendation on August 28, 2001, in which he concluded that Engeldinger lacked articulable suspicion to effectuate a Terry stop. He accordingly recommended that defendant's motion to suppress be granted.
Defendant proceeded to trial on November 28 and 29, 2002, at which time the nature of the initial encounter was touched upon again. When asked how Engeldinger interrupted her and the defendant, Evans testified as follows:
A: He asked, he requested, no, he demanded identification from Mr. Johnson when he interrupted us.
Q: Well, first of all, you used a couple of words there. Can you recall exactly how he caught anybody's attention, since you were having this conversation?
A: He said, "Excuse me, do you have any ID on you?" Mr. Johnson said, "Yes, I do."
Q: And then he, and then Mr. Johnson produced that ID? Is that right?
A: Yes, he produced.
Trial Trans. at 14. Evans was later asked what happened after defendant gave Deputy Engeldinger his identification:
Q: Did Mr. Johnson give him the identification requested?
A: Yes, he did.
Q: What happened next?
A: He looked at it. I guess he ran it through. He called it in to the other person on the, I can't describe the thing that they have in their hand. So I guess they —
Q: What did Mr. Johnson do?
A: Mr. Johnson was just standing there. And he was like, "This is F'd up. Why he stop me? I wasn't doing anything. What did I do, Officer?"
Q: What did he do next?
A: He stood there for awhile waiting for him to check his identification card. And then after probably within a split second or so, Mr. Johnson departed from the scene.
Trial Trans. at 19.
Defendant claims that the trial testimony cited above demonstrates that the initial encounter between Engeldinger and the defendant was not consensual. According to defendant, Evans' testimony that Engeldinger demanded defendant's identification indicates that Engeldinger's use of language and tone of voice was such that a reasonable person would believe that he had been stopped for official business, and that compliance was not optional. Defendant further argues that statements made by the defendant immediately before his flight demonstrate that the defendant did, in fact, perceive that he had been "stopped" rather than engaged in a consensual encounter. Based on this testimony, defendant claims that the initial encounter amounted to an investigatory stop for which there must be reasonable articulable suspicion. Because articulable suspicion was lacking, defendant claims the stop violated his Fourth Amendment rights and warranted the suppression of the gun, ammunition and incriminating statements at trial.
ANALYSIS
Federal Rule of Criminal Procedure 33 permits the Court to grant a new trial "if the interests of justice so require." In this case, defendant moves for a new trial on the basis that the Court improperly admitted evidence obtained in violation of the Fourth Amendment. The Eighth Circuit has previously found this to be a proper ground upon which to bring a motion for a new trial. United States v. Robbins, 21 F.3d 297 (8th Cir. 1994).
Upon review of the trial testimony and consideration of the arguments raised by the parties, the Court finds nothing that undermines the Court's previous order that the initial encounter between Engeldinger and the defendant was consensual. In arguing that the encounter was investigatory, defendant relies on Evans' testimony that Engeldinger demanded identification from the defendant. As an initial matter, the Court notes that this testimony contradicts Evans' pretrial testimony that Engeldinger merely requested identification from the defendant. Cf. Aug. 22, 2001 Evidentiary Hearing Trans. at 8. Furthermore, Evans' trial testimony on this point was far from unequivocal. When asked how Engeldinger interrupted her and the defendant, Evans reply was: "He asked, he requested, no, he demanded identification from Mr. Johnson when he interrupted us."
The Court finds it hard to credit such a dramatic shift in testimony, all within one sentence. Evans' testimony is further undermined by her very next response. When asked to repeat exactly how Deputy Engeldinger got the defendant's attention, Evans replied: "He said, `Excuse me, do you have any ID on you?'" Trial Trans. at 14. Instead of a demand, this politely phrased inquiry reverts back to Evans' pretrial testimony that Engeldinger merely "requested" identification and said "May I speak with you? Can I see some ID?" Aug. 22, 2001 Evidentiary Hearing at 8.
Defendant also relies on a statement that the defendant allegedly made just before departing from the scene. According to Evans' trial testimony, defendant said "This is F'd up. Why he stop me? I wasn't doing anything. What did I do, Officer?" Defendant claims this statement demonstrates that the defendant, in fact, believed he had been subject to an investigatory stop. The Court disagrees. First, the Court notes that Evans did not testify that Johnson made such a statement at the pretrial hearing. See Aug. 22, 2001 Hearing Trans. at 8-9. Second, even assuming the statement was made, the Court emphasizes the standard is an objective one and based on the totality of the circumstances. Mendenhall, 466 U.S. at 555 (concluding that "nothing in the record suggests that the respondent had any objective reason to believe that he was not free to end the conversation"). Under the facts of this case, the totality of the circumstances compel the conclusion that the initial encounter was not a seizure.
Evans testified at the pretrial hearing as follows:
Q: And after he asked Mr. Johnson for his ID, what happened then?
A: Mr. Johnson went into his back pocket and he took out his wallet, and he proceeded to give the officer his identification card. The officer looked at it, and Mr. Johnson stepped back and looked back, and then he headed across the street.
Q: And he was running at that time?
A: Yes.
At bottom, this issue hinges on witness credibility, a disfavored basis for overturning a jury verdict. United States v. Kuzniar, 881 F.2d 466, 470-71 (7th Cir. 1989) ("In general, conflicting testimony or a question as to the credibility of a witness are not sufficient grounds for granting a new trial."); Marshall v. United States, 436 F.2d 155, 156 n. 1 (D.C. Cir. 1970). Unlike Evans' testimony, Engeldinger's testimony concerning the events in question were consistent throughout the pretrial hearings and at trial. In addition, the jury heard evidence of two prior convictions by Evans, both for lying to the police, which could have undermined Evans' credibility with the jury. Thus, for all the foregoing reasons, the Court finds nothing which casts doubt on its pretrial ruling on this issue. Defendant's motion is accordingly denied.
ORDER
Based upon the foregoing, the submissions of the parties, the arguments of counsel and the entire file and proceedings herein, IT IS HEREBY ORDERED that defendant's motion for a new trial [Docket No. 66] is DENIED.