United States v. Christopher Farrow

574 F. App'x 723
CourtCourt of Appeals for the Sixth Circuit
DecidedAugust 6, 2014
Docket13-5401
StatusUnpublished
Cited by7 cases

This text of 574 F. App'x 723 (United States v. Christopher Farrow) is published on Counsel Stack Legal Research, covering Court of Appeals for the Sixth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Christopher Farrow, 574 F. App'x 723 (6th Cir. 2014).

Opinion

OPINION

STRANCH, Circuit Judge.

Christopher Farrow appeals his jury conviction for being a felon in possession of a firearm under 18 U.S.C. § 922(g)(1). He alleges that the prosecution: (1) shifted the burden of proof to the defense; (2) denigrated defense counsel and its strategy; and (3) commented on defendant’s failure to testify. He also appeals his conviction based on an allegedly improper jury instruction. These alleged errors provide no basis for reversal. Farrow additionally appeals his sentence, alleging that the district court incorrectly classified him as an armed career criminal and erroneously included an enhancement. Farrow fails to identify an error in his sentencing. Accordingly, we AFFIRM his conviction and sentence.

I. BACKGROUND

On April 1, 2012, Farrow returned from a grocery store in Memphis, Tennessee and was standing with a group of men in an apartment complex. Individuals associated with the complex flagged down the police and told them about the men. Police officers approached the group and Farrow allegedly ran, as did another man, Kenny Lockhart. During trial, two officers testified to seeing Farrow possess and toss a gun to the ground as he started to run. A civilian witness testified that Farrow had shown him the gun at the grocery store and that he had seen Farrow toss the gun. Lockhart subsequently tried to pick up the gun and was tackled by police. Farrow was chased down and arrested by the officers. Farrow’s theory of the case was mistaken identity — someone else, most likely Lockhart, initially possessed the gun and tossed it to the ground.

Farrow went to trial. On cross examination, defense counsel asked Officer Dennis Rodgers whether he had ever stopped Farrow in the apartment complex before this incident. Officer Rodgers responded that he had never seen Farrow before the incident. Defense counsel then asked specifically:

Defense Counsel: Okay. It’s your testimony under oath today that you never stopped him and told him if I see you walking through here again, I’m putting you under arrest?
Officer Rodgers: That’s correct.

Later, defense counsel asked Detective Brandon Champagne whether he had tested the dropped gun for touch DNA. Champagne responded: “No. But you yourself can have the gun tested behind me for DNA if you would like by your investigator.”

During the prosecution’s closing, the prosecutor referenced the questioning of Officer Rodgers, noting the defense’s failure to provide any evidence of the conversation that Officer Rodgers denied having with Farrow:

Defense counsel also asked Officer Rodgers about what — question, also tried to attack his credibility or give you the [illusion of a doubt by asking a questions [sic] like isn’t it true that you *726 told the defendant the next time you saw him you were going to arrest him. Might make you think maybe it happened, maybe you are going to hear evidence to that effect at some point.
Officer Rodgers testified no, he didn’t do that. As a matter of fact, I had not seen him prior to that date, you know.
The neat thing about criminal law is even as defense counsel, sometimes a witness can come in you’ve never seen before, they can say whatever they want to say.
So like you, I’m sitting there saying, thinking is someone going to come in and testify, is someone going to come water that seed or plant that defense counsel has tried to plant, water that seed. There is no evidence to the contrary.

During its closing, defense counsel referred to Lockhart as “the real defendant” and contended that the prosecution should have called him to testify so the jury could hear from him about possession of the gun. In closing rebuttal, the prosecutor responded that Farrow had the same subpoena powers as the prosecution, though also noting that Farrow had no obligation to put on any proof. The court instructed the jury:

The defendant has not taken the stand to testify as a witness, but you shall place no significance on this fact. The defendant is presumed innocent, and the burden is upon the government to prove his guilt beyond a reasonable doubt. He is not required to take the stand in his own behalf, and his election not to do so cannot be considered for any purpose against him, nor can any inference be drawn from that fact.

At the jury instruction conference, the prosecution requested that Pattern Criminal Jury Instruction (PCJI) for the Sixth Circuit 8.08 be added to the district court’s initial draft. PCJI 8.08 provides:

(1) Remember that the defendant is only on trial for the particular crime charged in the indictment [and the lesser charges which I described]. Your job is limited to deciding whether the government has proved the crime charged [or one of those lesser charges].
[ (2) Also remember that whether anyone else should be prosecuted and convicted for this crime is not a proper matter for you to consider. The possible guilt of others is no defense to a criminal charge. Your job is to decide if the government has proved this defendant guilty. Do not let the possible guilt of others influence your decision in any way.]

This instruction comes with the following use note:

Bracketed paragraph (2) should be included if the possible guilt of others has been raised as an issue during the trial. Modifications of this paragraph may be necessary in conspiracy, aiding and abetting, alibi or mistaken identification cases, where the possible guilt of others may be a legitimate issue.

PCJI 8.08, Use Note. The commentary states the purpose of the instruction and explains that whether paragraph (2) should be used depends on the defendant’s theory of the case.

Committee Commentary 8.08:
(current through April 1, 2013)
The purpose of this instruction is twofold. The first purpose is to remind the jurors that their verdict is limited to the particular charge made against the defendant. The second is to remind them that their verdict is limited to the particular defendant who has been charged. The instruction is a plain English restatement of various concepts found in comparable instructions.
*727 Paragraph (2) should not be given in every case. If the possible guilt of others has not been raised during trial, this paragraph is unnecessary and should be omitted to avoid confusion. Note also that this paragraph may require modification in cases where vicarious criminal liability is alleged, such as conspiracy or aiding and abetting cases. In such cases the jury may be required to decide the guilt of other persons not charged in the indictment. Paragraph (2) may also require modification in cases in which the defendant has raised an alibi defense or has argued mistaken identification.

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Cite This Page — Counsel Stack

Bluebook (online)
574 F. App'x 723, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-christopher-farrow-ca6-2014.