United States v. Randy Wilcher

512 F. App'x 919
CourtCourt of Appeals for the Eleventh Circuit
DecidedMarch 13, 2013
Docket11-14140
StatusUnpublished
Cited by3 cases

This text of 512 F. App'x 919 (United States v. Randy Wilcher) 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. Randy Wilcher, 512 F. App'x 919 (11th Cir. 2013).

Opinions

PER CURIAM:

Appellant Randy Wilcher appeals his convictions and sentence for possession with the intent to distribute heroin, in violation of 21 U.S.C. § 841(a)(1), (b)(1)(C), and possession of a firearm as a convicted felon, in violation of 18 U.S.C. §§ 922(g)(1), 924(e)(1). After a jury convicted Wilcher,1 the district court sentenced Wilcher to 188 months imprisonment. Wilcher raises five issues on appeal. After carefully reviewing the record, reading the parties’ briefs, and having the benefit of oral argument, we affirm the district court on all issues.

I

Wilcher first contends the district court erred in admitting statements made to officers — one by Wilcher and one by his ex-girlfriend, Laquandra Kilpatrick — that Wilcher slept in a bedroom where parole officers recovered a handgun during a search of Wilcher’s residence. As to the first statement, Wilcher argues the district court erred in admitting his statement because the prosecution failed to disclose its intent to use the statement at trial, in violation of Rule 16 of the Federal Rules of Criminal Procedure. See Fed R.Crim. P. 16(a)(1)(A).2 The Government concedes [921]*921that it violated Rule 16 by failing to disclose its intent to use Wilcher’s statement, but argues the district court’s admission of the statement was not plain error.

Here, when the parole officer testified to Wilcher’s statement, Wilcher did not contemporaneously object and instead raised his Rule 16 objection after the next court recess. Consequently, we reverse only if the district court’s admission of this statement was plainly erroneous.3 See United States v. Turner, 474 F.8d 1265, 1276 (11th Cir.2007) (applying plain error review where defendant “had ample opportunity to lodge a[n] ... objection during the two direct examinations at issue but did not”). Absent a contemporaneous objection or other prior notification by Wilcher to the district court that this statement was not disclosed properly, the Government’s failure to disclose would not have been obvious to the district court when it considered the statement’s admissibility. See United States v. Olano, 507 U.S. 725, 734, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993) (noting that a “plain” error is one that is “obvious”). The district court accordingly did not commit plain error by admitting the officers’ testimony about Wilcher’s statement, despite the Government’s admitted failure to disclose that statement. See id.

Wilcher next argues the district court erred by admitting Kilpatrick’s statement to officers that Wilcher slept in the bedroom where officers discovered the handgun. Wilcher argues the statement is inadmissible hearsay. We disagree.

We review a district court’s ruling on the admissibility of evidence for abuse of discretion, and evidentiary rulings will be overturned only if the moving party establishes that the ruling resulted in a “substantial prejudicial effect.” Judd v. Rod-man, 105 F.3d 1339, 1341 (11th Cir.1997).

According to Rule 801 of the Federal Rules of Evidence, hearsay “is a statement, other than one made by the declar-ant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.” Fed.R.Evid. 801(c). Out-of-court statements offered for a reason other than their truth are not hearsay, however, and their admission consequently is not barred by Rule 802 of the Federal Rules of Evidence.4 See United States v. Arbolaez, 450 F.3d 1283, 1290 (11th Cir.2006). An out-of-court statement may be admitted to explain why officers conducted a particular investigation if the statement is “relevant to explain[ing] the course of the officials’ subsequent investigative actions, and the probative value of the evidence’s non-hearsay purpose is not substantially outweighed by the danger of unfair prejudice caused by the impermissible hearsay use of the statement.” See United States v. Baker, 432 F.3d 1189, 1209 n. 17 (11th Cir.2005).

Although Kilpatrick’s statement was made by an out-of-court declarant, the district court admitted the statement to explain why officers searched the bedroom of Wilcher’s house rather than to prove that Wilcher possessed the firearm. See United States v. Jiminez, 564 F.3d 1280, 1287 (11th Cir.2009) (allowing an out-of-court statement to explain an officer’s conduct). To avoid the danger of unfair prejudice, the district court instructed the jury that the statement was not admissible for the truth of the matter asserted (that Wil-[922]*922cher slept in the bed room), but rather to demonstrate the officers’ conduct. Thus, the district court did not abuse its discretion in admitting Kilpatrick’s statement.

Finally, even assuming arguendo that the court did err in admitting Kilpa-trick’s statement, the error was harmless. To be harmless, an error must not have affected the defendant’s substantial rights. See Olano, 507 U.S. at 734-35, 113 S.Ct. 1770. Here, the record reveals additional unchallenged and properly admitted evidence that demonstrated that Wilcher possessed the firearm. The record shows that Wilcher lived in the house where the handgun was found. Further, the Government offered testimony and presented photographic evidence that a box containing Wilcher’s documents was recovered from the bedroom and that Wilcher’s clothing was in the closet of the same bedroom. An officer also testified that while he was transporting Wilcher, Wil-cher said he saw the handgun on the morning of the search and placed it “underneath his mattress.” This evidence, taken together, constituted sufficient evidence that Wilcher had constructive, if not actual, possession of the gun. See United States v. Molina, 443 F.3d 824, 829-30 (11th Cir.2006) (holding a jury may infer that a defendant had constructive possession over objects found in his or her residence); United States v. Perez, 661 F.3d 568, 576 (11th Cir.2011) (holding a defendant has constructive possession over an object when he knows of the object’s presence and has the ability and intent to exercise dominion and control over the object).

II

Free access — add to your briefcase to read the full text and ask questions with AI

Related

United States v. Randy Wilcher
Eleventh Circuit, 2018
Wilcher v. United States
134 S. Ct. 172 (Supreme Court, 2013)

Cite This Page — Counsel Stack

Bluebook (online)
512 F. App'x 919, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-randy-wilcher-ca11-2013.