IN THE UNITED STATES COURT OF APPEALS
for the Fifth Circuit
__________________________
No. 93-8775 __________________________
UNITED STATES OF AMERICA, Plaintiff-Appellee,
versus
WILL ARTHUR PALMER, Defendant-Appellant.
_______________________________________________
Appeal from the United States District Court for the Western District of Texas _______________________________________________ (October 27, 1994)
Before REAVLEY, DeMOSS and STEWART, Circuit Judges.
CARL E. STEWART, Circuit Judge:
Palmer was tried and convicted by jury of being a convicted
felon in possession of a firearm (Count 1), in violation of 18
U.S.C. §§ 922(g), 924(e), and of possessing an unregistered sawed-
off shotgun (Count 2), in violation of 26 U.S.C. § 5861. He
appeals his conviction, asserting that (1) after the parties had
stipulated that he had a prior felony conviction, the district
court impermissibly allowed the government to present evidence of
his prior felony conviction and parole term, and (2) some of the
prosecutor's comments during oral argument deprived him of a fair
trial. We affirm.
FACTS
On November 19, 1992, two San Antonio Police Department patrol
officers observed Will Palmer walking toward them on Micklejohn Street. Palmer was wearing a dark colored trench coat, and it
appeared to the officers that he carried something underneath his
coat. As the officers stopped and got out of their patrol car,
Palmer ran. The officers chased him and observed him throw down a
long dark object as he jumped over a fence. They apprehended
Palmer shortly thereafter. One of the officers returned to the
area where the dark object was thrown down and found a sawed-off
shotgun.
Will Palmer had been convicted previously of murder without
malice and was on parole for life. He was indicted for count one,
being a felon in possession of a firearm, in violation of 18 U.S.C.
§§ 922(g), and count two, being in possession of an unregistered
sawed-off shotgun, in violation of 26 U.S.C. § 5861.
Relative to the § 922(g) offense, the parties stipulated that
Palmer had a prior felony conviction and that Palmer "is guilty of
the prior conviction element of Count One of the instant
indictment."
Palmer filed a motion in limine "seeking to exclude any
evidence of prior conviction, or other crimes, wrongs, and acts and
the fact of the prior conviction," on grounds of the stipulation.
In the supporting memorandum, he argued that such evidence was
irrelevant under Fed.R.Evid. 402, but that "if relevant to a
particular issue, pursuant to Rule 404(b), such evidence is
excludable at the court's discretion, under Rule 403, for reasons
2 of prejudice."1 Prior to trial, the defense objected to the
introduction of testimony by Palmer's state parole officer and
evidence of his parole-release conditions, citing Rules 401, 403,
and 404(b) and this Court's opinion in United States v. Beechum,
582 F.2d 898 (5th Cir. 1978) (en banc), cert. denied, 440 U.S. 920
(1979). The government responded: "We're offering [the parole
officer's] testimony as circumstantial evidence the Defendant knew
he could not possess a gun . . . as a condition of his parole. He
also knew that he couldn't violate local, state, municipal, and
federal laws. It also goes to show why he ran from the police that
night." The court overruled the defense objections.
The first government trial witness was Palmer's state parole
officer, Maria Ramirez. She testified about the fact of Palmer's
status as a felon and about his knowledge of the conditions of
parole. The government then offered into evidence Palmer's
certificate of parole as government Exhibit 1. The certificate
indicated that he was aware of the rules. It also stated that his
parole term was "Life" and that he was required to undergo drug and
alcohol treatment as a special condition of parole.
Defense counsel objected to introduction of the certificate
based on the grounds stated in the motion in limine, particularly
the stipulation of admission that's of record in this case. The
1 Federal Rule of Evidence 403 provides as follows:
Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.
3 court overruled this objection. Upon completion of all the
evidence, charging of the jury, and closing arguments of counsel,
the jury found Palmer guilty as charged. The district court
sentenced him on count one to 262 months, to be followed by five
years of supervised release, and on count two to 120 months, to be
followed by three years of supervised release. Both the terms of
imprisonment and the terms of supervised release are to be served
concurrently. Palmer appeals his convictions.
DISCUSSION
Palmer contends first that the stipulation rendered irrelevant
all evidence of his prior conviction and that the admission of this
evidence was reversible error. We review a trial court's
evidentiary rulings and determinations of relevance for abuse of
discretion.2 United States v. Lopez, 979 F.2d 1024, 1032 (5th Cir.
1992), cert. denied sub nom., Ramirez v. United States, __ U.S. __
113 S.Ct. 2349, 124 L.Ed.2d 258 (1993); United States v. Williams,
900 F.2d 823 (5th Cir. 1990).
2 The government points out that (1) Palmer did not present to the district court his argument that the contents of the certificate are prejudicial, and (2) regarding the parole certificate, Palmer requested neither redaction of irrelevant portions nor any limiting instruction. For these reasons, the government asserts that "plain error" is the correct standard of review for Palmer's objection to specified contents of the certificate. We disagree because Palmer's objection included references to the Fed.R.Evid. 403 balancing test which we find sufficiently specific to preserve for appeal the issue of the certificate's prejudicial effect. See and compare, United States v. Jiminez Lopez, 873 F.2d 769, 773 (5th Cir. 1989); Fed.R.Evid. 103(a)(1). Given Palmer's timely objections to the admission of this certificate, Palmer was not required to attempt to make the certificate properly admissible. See and compare, United States v. Morrow, 537 F.2d 120, 145 n.38 (5th Cir. 1976).
4 The Effect of the Stipulation
As a general rule, a party may not preclude his adversary's
proof by an admission or offer to stipulate. United States v.
Spletzer, 535 F.2d 950, 955 (5th Cir. 1976); United States v.
Ponce, 8 F.3d 989, 993 (5th Cir. 1993). Nonetheless, this
principle, like all rules of evidence, is subject to the provision
that where the probative value of relevant evidence is
substantially outweighed by its potential for unfair prejudice, it
should be excluded. Spletzer, Id.; Fed.R.Evid. 403. An important
consideration relating to probative value is the prosecutorial need
for such evidence. Spletzer, Id. Another central consideration in
determining probative value is how strongly the proffered evidence
tends to prove an issue of consequence in the litigation. See
United States v. Beechum, 582 F.2d 898, 914-915 (5th Cir. 1978) (en
banc) cited in United States v. Grassi, 602 F.2d 1192 (5th Cir.
1979), vacated and remanded, 448 U.S. 902, 100 S.Ct. 3041, 65
L.Ed.2d 1131, on remand, 626 F.2d 444 (5th Cir. 1980).
As stated by the First Circuit (en banc), "[a] decision to
honor a stipulation concerning the predicate crime in a felon-in-
possession case in no way trenches upon the right of the
prosecution to make a full presentation of the crime currently
charged." United States v. Tavares, 21 F.3d 1, 3 (1st Cir. 1994).
After a stipulation of the fact of a predicate conviction for the
felon in possession of a firearm offense, the legal question of
status is still a relevant issue; however, the predicate crime is
significant only to demonstrate status, and the issue of status
5 does not depend upon the probative value of the evidence. See and
compare, United States v. Chapman, 7 F.3d 66, 69 (5th Cir. 1993);
see also, Tavares, 21 F.3d at 4.
Admissibility of the Stipulation and Ramirez' Testimony
Ramirez testified that as Palmer's parole supervisor, she had
explained to him the rules by which he had to abide as a parolee.
These included the condition that he obey all municipal, county,
and federal laws and that he may not possess or have any type of
weapon or illegal weapon, that can cause bodily injury. Ramirez
testified about whether Palmer knew he was not to possess a weapon,
but she did not testify about the nature of the predicate offense.
We find no abuse of the district court's discretion in its
determination that Ramirez' testimony was admissible with regard to
Palmer's parole status. Ramirez' testimony about Palmer's
conditions of parole went beyond the question of the "fact" of the
prior conviction, but did not embrace either the nature or other
details about that offense. The government carefully tailored the
testimony elicited from Ramirez to avoid any impermissible
reference to the predicate offense, as well as to avoid any
information which related to Palmer's character or propensity
toward criminal behavior. For this reason, we find no error in the
admission of Ramirez' testimony.
Likewise, we find no error in the admission of the stipulation
itself. The stipulation apprised the jury that Palmer had a prior
felony conviction, thus it was evidence of Palmer's status. The
district court later instructed the jury that "The parties have
6 stipulated that defendant has been convicted of a crime punishable
by imprisonment for a term in excess of one year, and you should
regard this second element as proven beyond a reasonable doubt."
The stipulation was neither irrelevant nor inadmissible, regardless
of Palmer's reasons for stipulating.3
Admissibility of the Parole Certificate
Neither the stipulation nor Ramirez' testimony included
evidence about the nature of the prior conviction. This is not so
regarding the parole certificate. The government argues that the
parole certificate was admissible to show that Palmer fled from the
police officers because he knew that he was not permitted to
possess a firearm.4 However, Ramirez' testimony established
Palmer's awareness that he could not legally possess a firearm.
Through her testimony, the jury heard evidence of the parole
conditions prior to introduction of the parole certificate; the
jury heard further evidence that Palmer knew these conditions
before he ran from these police officers. Thus, at the time the
parole certificate was offered, the government already had
accomplished what it set out to do.
Unsatisfied with just having the testimony before the jury,
the government introduced the certificate and, in so doing,
overlooked language on the certificate which told the jury that
3 Palmer asserts that he entered the stipulation in order to keep from the jury all evidence about his prior conviction. 4 Palmer concedes that the evidence introduced provides, "at best, an attenuated inference that Palmer fled because he was on parole."
7 Palmer's prior conviction was one for which he received parole for
life, and for which he was required to undergo drug/alcohol
treatment.5
This information is similar to information about the nature of
the predicate offense. Given the parties' stipulation, evidence of
the predicate offense has no probative value apart from
establishing Palmer's status. See, Chapman, 7 F.3d at 69, and
Tavares, 21 F.3d at 4. The fact that Palmer was on parole for life
and was subject to drug and alcohol treatment improperly focused
part of the jury's attention toward matters which were not
probative of the elements of the charged offenses. Though we find
clear error in admission of the unredacted parole certificate, for
the reasons more fully stated herein we conclude that the error was
harmless under the unique facts of the case.
Prosecutorial Misconduct
Palmer asserts that the prosecutor (1) accused the defense
counsel of attempting to deceive the jury, (2) attempted to shift
the burden of proof to Palmer, and (3) argued outside the record
evidence.
Counsel is accorded wide latitude during closing argument, and
this court gives deference to a district court's determination
regarding whether those arguments are prejudicial and/or
inflammatory. United States v. Willis, 6 F.3d 257, 263 (5th Cir.
5 The record gives no indication that the jury did not receive the parole certificate as part of the case exhibits at the end of the trial. Moreover, defense counsel's assertion that the certificate was also published to the jury during the testimony of Ramirez was not rebutted by the government.
8 1993) (citation and internal quotation marks omitted). Our task in
reviewing a claim of prosecutorial misconduct is to decide whether
the misconduct casts serious doubt upon the correctness of the
jury's verdict. Id. The three factors we consider in deciding
whether to reverse the defendant's conviction due to improper
prosecutorial argument are as follows: (1) the magnitude of the
prejudicial effect of the prosecutor's remarks, (2) the efficacy of
any cautionary instruction by the judge, and (3) the strength of
the evidence supporting the conviction. United States v. Casel,
995 F.2d 1299, 1308 (5th Cir. 1993) (citation and internal
quotation marks omitted), cert denied, ___ U.S. ___, 114 S.Ct.
1308, 127 L.Ed.2d 659 (1994). The magnitude of the prejudicial
effect is tested in part by looking at the prosecutor's remarks in
the context of the trial in which they are made and attempting to
elucidate their intended effect. Willis, 6 F.3d at 264; Casel, 995
F.2d at 1308.
The first challenged comment is as follows:
Defense counsel wants you to focus on these little discrepancies: was [Palmer] ten feet away, was he fifteen feet away. Did he take two steps this way and then go north or did he run straight north. He wants you to focus on those little, tiny, immaterial matters, because he wants to confuse you. He wants to throw up a smoke screen.
According to Palmer, this was a comment on the exercise of his
right to counsel or a claim that defense counsel used his skill to
manipulate or mislead the jury. Palmer cites as support for this
argument United States v. McDonald, 620 F.2d 559, 564 (5th Cir.
1980). Palmer also asserts that the prosecutor's comment that the
9 defense asked the jury to believe that the officers lied was a
mischaracterization and was error. We disagree.
We find McDonald inapposite. There, the prosecutor's comments
about defense counsel's presence during a search were improper
because they likely gave rise, in the average juror's mind, to
inferences which included (1) the attorney aided in or tolerated
destruction of evidence, and (2) the defendant would not have
gotten a lawyer unless he was guilty. By contrast, the context of
the instant statements reveals that the prosecutor merely outlined
his view of the defense strategy. See and compare, United States
v. Wisenbaker, 14 F.3d 1022, 1028 (5th Cir. 1994); United States v.
Frascone, 747 F.2d 953, 957-958 (5th Cir. 1984). Moreover, the
testimony of the officers was such that the prosecutor's comment
did not amount to a mischaracterization. We find no error in these
comments.
Palmer also argued that the district court's comment to the
jury, that argument of counsel was of no concern and was not
evidence, exacerbated the error from the prosecutor's comments. We
disagree. Viewed in its context, this comment was not error.
Prior to oral argument, the prosecutor asked the district
court to prohibit defense counsel from referring to witnesses who
did not testify. The district court ruled that, if the defense
says the government did not subpoena the witnesses, then the
government can say that the defense did not subpoena them.
Defense counsel responded "All right. That's fine, judge . . . I
mean, I'll agree to that." Defense counsel stated that he would
10 talk about the burden of proof, but would not talk about the
government's failure to produce witnesses. In closing argument,
defense counsel twice referred to unsubpoenaed witnesses. The
second time, defense counsel further stated "You can ask yourself,
well, what version would they have given if they were here? . . .
If they're not subpoenaed, they're not going to be here." Palmer's
second and third categories of alleged prosecutorial misconduct
occurred during rebuttal when the prosecutor stated the following:
[Prosecutor]: Ladies and gentlemen, defense counsel has the exact same subpoena power that the government has.
[Defense Counsel]: Objection, your honor. Counsel is attempting to shift the burden of proof.
The Court: Overrule the objection.
[Prosecutor]: If he wanted to subpoena those police officers that weren't here, he could have done it. Why didn't he? They would have told you the same story that the two officers that were here told you.
[Defense Counsel]: Objection, your honor. That's outside the record. It's improper.
[Prosecutor]: Domingo and Bobby? He could have subpoenaed them if he wanted you to hear their stories. I didn't subpoena them, it's not necessary. You have the evidence, the facts that you need to convict Will Palmer, right here.
There was no further comment on the unsubpoenaed witnesses or the
subpoena power of the respective parties. Viewed in context, we
find no error in the prosecutor's response regarding the subpoena
power of the defendant. Rather than an impermissible shift of the
burden of proof, these comments were a response to defense
counsel's argument. However, we do find that the prosecutor's
comment on evidence outside the trial was impermissible even though
11 it was provoked. It was error for the prosecutor to tell the jury
what witnesses who did not testify would have said had they
testified.
Harmless Error Analysis
We have determined that through the parole certificate, the
jury received information which had a tendency to suggest a
decision on an improper basis. We have also found that the
prosecutor's reference to evidence outside the record was an
improper and unnecessary comment. We now turn to examine whether
these errors were harmless or warrant reversal.
An error is harmless if the reviewing court is sure, after
viewing the entire record, that the error did not influence the
jury or had a very slight effect on its verdict. United States v.
Quintero, 872 F.2d 107, 111 (5th Cir. 1989) cert. denied, 496 U.S.
905, 110 S.Ct. 2586, 110 L.Ed.2d 267 (1990), quoting United States
v. Heller, 625 F.2d 594, 599 (5th Cir. 1980). Reversal based on
improper argument by the prosecutor is not called for when there
has not been a strong showing of a deleterious effect upon the
right to a fair trial. Casel, 995 F.2d at 1308.
The jury heard evidence of the following: Two experienced
police officers saw Palmer at approximately 9:45 p.m. He was about
fifteen feet from them in the street when they first saw him and,
for a moment, the headlights on their patrol car illuminated him.
It appeared to both officers that Palmer was holding a weapon
underneath his trench coat. When they stopped to contact him, he
turned to run. His trench coat opened just enough for one of the
12 officers to see a weapon inside the coat. During the brief chase,
the other officer saw Palmer throw or toss a long, dark object.
When the chase ended, Palmer was handcuffed on the ground. The
officer returned to the exact area where he had seen the object,
only a few feet away from where Palmer lay on the ground, and found
a sawed off shot-gun.
Palmer attempted to point out conflicts between the officers'
testimony and argued that the officers were mistaken in what they
thought they saw. Palmer did not assert that the officers lied.
Instead, his defense was that the police officers were mistaken in
that although they found a firearm in Palmer's vicinity, Palmer had
not possessed it. Palmer highlighted differences in the officers'
testimony, such as whether his hand held the weapon inside or
outside the trench coat and the distance between Palmer and the
officers when they saw him.
The officers' testimony was not identical. However, the
variances were due to the different vantage points and different
duties they exercised during the brief chase. One officer chased
Palmer and never lost sight of him until the end of the chase.
That officer saw Palmer toss the long dark object. The other
officer saw the gun under the trench coat but had taken a different
route than Palmer and the first officer in order to cut off
Palmer's path of escape. The first officer did not say the object
was a gun; the second officer did not say he saw Palmer throw down
the gun. Nevertheless, the direct testimony between the two
officers was such that the jury had a clear picture of what
13 occurred between the time the officers saw Palmer and the time he
was apprehended.
To the extent that the jury's ability to believe the defense
version of the facts was curtailed by the prejudicial information
on the parole certificate, the admission of this evidence was
harmless. However, in light of the direct evidence that the
officers saw Palmer with the shotgun, we are sure that any effect
upon the jury's verdict from this prejudicial information was very
slight. For this reason, we find that the error in admitting this
prejudicial information was harmless. Under different
circumstances, the admission of the information on this parole
certificate would require reversal.
For the same reason, we find it unlikely that the comment made
during closing argument influenced the jury verdict. Moreover,
Palmer has made no showing of a deleterious effect upon his right
to a fair trial based upon this comment. We find that the
prosecutor's comment does not rise to the level of reversible
error. Accordingly, Palmer's conviction is affirmed.
CONCLUSION
The government concedes in brief that the parties' stipulation
rendered irrelevant any specific evidence of the prior conviction,
but contends that the stipulation does not remove from the jury's
consideration the stipulated element of the offense. We have
determined that the existence of the stipulation does not mean that
evidence of the fact of Palmer's predicate offense is inadmissible.
For this reason, we have no quarrel with the district court's
14 ruling on admission of Ramirez' testimony or admission of the
stipulation. The admission of the unredacted parole certificate
was error, as was the prosecutor's comment on evidence which had
not been presented to the jury. Nevertheless, we find that
Palmer's convictions must be AFFIRMED because under the
circumstances of this case, these errors were harmless.