United States v. Jerry Thomas Davis

779 F.3d 1305, 2015 U.S. App. LEXIS 3501, 2015 WL 925544
CourtCourt of Appeals for the Eleventh Circuit
DecidedMarch 5, 2015
Docket13-12436
StatusPublished
Cited by10 cases

This text of 779 F.3d 1305 (United States v. Jerry Thomas Davis) is published on Counsel Stack Legal Research, covering Court of Appeals for the Eleventh 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. Jerry Thomas Davis, 779 F.3d 1305, 2015 U.S. App. LEXIS 3501, 2015 WL 925544 (11th Cir. 2015).

Opinions

HINKLE, District Judge:

This criminal case presents three issues. First, does Federal Rule of Evidence 610, which excludes evidence of a witness’s “religious beliefs or opinions ... to attack or support the witness’s credibility,” bar evidence that a witness’s job is city and police-department chaplain, even when neither side argues that this affects credibility? Second, must a court give a special jury instruction on the credibility of a law enforcement officer and the defendant’s right to attack an officer’s credibility? Third, may a court that has already given one modified Allen charge tell a deadlocked jury to keep deliberating— with a reasonable suggestion for how to do it—while also telling the jurors they will be released if they are unable to agree within a short additional period of deliberations? We resolve all three issues for the government and affirm the defendant’s conviction.

I

A jury convicted the defendant Jerry Thomas Davis of possessing an unregistered short-barreled shotgun in violation of 26 U.S.C. § 5861(d). He now appeals.

The background is this. Hanceville is a small city in Alabama. Its police department received a 911 report that Mr. Davis pointed a sawed-off shotgun at another person. The report gave a residential address.

Officers Anthony Childress and Jady Pipes separately traveled to the address. They were on the lookout for a red Pontiac Grand Am. Mr. Pipes saw a red Grand Am drive down the street but turn around in a driveway just before reaching the address at issue. Mr. Pipes saw the driver of the Grand Am throw something out the driver’s window, over the car, into a yard. The Grand Am sped away, running stop signs. Mr. Pipes gave chase with lights and sirens activated. He eventually succeeded in stopping the Grand Am about a mile away. Mr. Davis was the Grand Anís driver and sole occupant.

When Mr. Childress arrived and went forward with the arrest, Mr. Pipes re[1308]*1308turned to the yard to look for the object thrown from the Grand Am. He eventually found the short-barreled shotgun that led to Mr. Davis’s conviction.

II

Mr. Pipes was a sworn officer who routinely performed some of the same duties as other Hanceville officers. But Mr. Pipes held the position of “chaplain,” not only with the police department but also with the city itself. Before trial, Mr. Davis moved to exclude testimony that Mr. Pipes was the “chaplain,” to bar the government from referring to Mr. Pipes as “chaplain,” and to prevent Mr. Pipes from appearing with these parts of his official uniform: a large, plainly visible cross on his hat and much smaller crosses on his badge and lapel.

Mr. Davis based his motion on Rule 610. Mr. Davis did not challenge the city’s decision to have a chaplain who wears a cross while serving as a law enforcement officer, and the issue is not before us.

The court ruled that Mr. Pipes could testify to his title and that the government could refer to him that way. The court ruled that Mr. Pipes could not wear the large cross but could wear the other crosses, which were too small to be seen or recognized from the jury box.

The trial proceeded accordingly. Mr. Pipes was the government’s first and most important witness. He was the only person who saw an object thrown from the car, so the case turned largely on his credibility.

On appeal, Mr. Davis asserts that allowing evidence that Mr. Pipes was a “chaplain”—and allowing the government to refer to him that way—violated Rule 610. Mr. Davis has abandoned any complaint about the crosses.

A

The government says Mr. Davis waived the “chaplain” objection by failing to assert the objection contemporaneously during the trial. That is plainly wrong. Since 2000, Federal Rule of Evidence 103(b) has provided: “Once the court rules definitively on the record—either before or at trial—a party need not renew an objection or offer of proof to preserve a claim of error for appeal.” The government’s reliance on older cases—cases of the kind that prompted the 2000 amendment—is misplaced.

Mr. Davis’properly presented the “chaplain” issue in advance. The court ruled definitively on the issue. Mr. Davis’s objection is fully preserved. See, e.g., Tampa Bay Water v. HDR Eng’g, Inc., 731 F.3d 1171, 1178 (11th Cir.2013) (“However, under the Federal Rules of Evidence, it is no longer necessary for a party to renew an objection to evidence when the district court has definitively ruled on the party’s motion in limine.”)-Proctor v. Fluor Enters., Inc., 494 F.3d 1337, 1349-50 (11th Cir.2007).

B

Rule 610 is entitled “Religious Beliefs or Opinions.” The rule provides in full: “Evidence of a witness’s religious beliefs or opinions is not admissible to attack or support the witness’s credibility.”

By its terms, the rule excludes evidence only when two conditions are both satisfied. First, the evidence must be evidence of a witness’s “religious beliefs or opinions.” Second, the evidence must be offered “to attack or support the witness’s credibility.” Evidence of religious beliefs or opinions may be admitted for another purpose.

Mr. Davis falls short in both respects.

[1309]*1309The government offered no evidence of Mr. Pipes’s “religious beliefs or opinions.” In his argument to this court, Mr. Davis does not say—because on this record he cannot know—-what religion Mr. Pipes adheres to. Mr. Davis does not discuss—because on this record he cannot know—Mr. Pipes’s religious beliefs. Nobody said a word to the jury, in testimony or in argument, about Mr. Pipes’s “religious beliefs or opinions.”

All that was proved was that Mr. Pipes held the position of chaplain.Most chaplains, though not necessarily all, believe in a deity and adhere to an organized religion. But Mr. Pipes did not say whether this was true for him. And if he does adhere to an organized religion, Mr. Pipes did not say which one, or what he believes. (To be sure, while on duty Mr. Pipes wore a cross, a symbol associated with some religions but not others. The jury did not, however, learn of the cross.)

In trials across the country every day, countless witness examinations begin by having the witness tell the jury where the witness works. If the witness has a title, it almost always comes out. This background information is provided not “to attack or support the witness’s credibility,” but simply to introduce the witness. This probably happens in more witness examinations than not. Indeed, the defense began its cross-examination of Mr. Pipes with questions along this same line, pointing out that Mr. Pipes worked not only for the City of Hanceville but also part-time for another city’s police department.

Rule 610 does not codify a bias against those who hold jobs that may be related to religion. So just as a witness who is a builder or grocer or pharmacist can testify to the job the witness holds, so can a chaplain. Or even a priest.

Mr.

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Cite This Page — Counsel Stack

Bluebook (online)
779 F.3d 1305, 2015 U.S. App. LEXIS 3501, 2015 WL 925544, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-jerry-thomas-davis-ca11-2015.