United States v. Smith

70 F. App'x 804
Court of Appeals for the Sixth Circuit·Decided July 15, 2003·No. No. 02-1017·Published·Cited by 1 cases

Opinion

OPINION

COLE, Circuit Judge.

On August 29, 2001, Defendant-Appellant Brian Smith was convicted of being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g). Smith was sentenced to a term of twenty-seven months in the custody of the Bureau of Prisons, to be followed by a two-year term of supervised release. On appeal, Smith raises two points of error concerning evidentiary matters that arose at his trial. First, Smith argues that the repeated solicitation by the prosecutor of the opinion of a government witness regarding whether Smith possessed the firearm spoke to the ultimate issue in the case and therefore invaded the province of the jury. Second, Smith asserts that it was reversible error for the prosecutor to question a government witness about the characteristics of the firearm at issue in this case, thereby causing prejudice to Smith.

For the reasons that follow, we AFFIRM the judgment of the district court.

I.

On April 9.2001, at approximately 2:30 a.m., two Michigan State police troopers, David Geyer and Jay Kurowski, initiated a traffic stop of a GMC Yukon vehicle that was traveling well above the posted speed limit. Smith, the driver of the vehicle, was unable to provide his license at the request of Geyer, and Geyer then placed Smith under arrest for operating a vehicle without a license. There was an individual in the passenger’s seat and two individuals in the rear seat of the car. After the three passengers were asked to exit the vehicle, Kurowski conducted a search of the Yukon and found a firearm on the driver’s side between the seat and the console. The troopers ran a LIEN check on the vehicle, and learned that it was registered to Brian and Margaret Smith. On June 6, 2001, a grand jury in the Eastern District of Michigan returned a one-count indictment charging Smith with being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g).

A jury trial commenced on August 28, 2001. Geyer was the Government’s first witness, and he was followed by Kurowski. During the testimony of Kurowski, the following exchange took place:

Uetz (prosecutor): So, the handle and the stock of that gun were visible to you on the passenger’s side of the car?
A: Yes.
Q: And you’ve described the size of the car?
A: Yes.
Q: And you saw the driver’s side of the car?
A: Yes.
Q: If that much was visible to you from the driver’s side, is it a fair assumption— I’m sorry. If that much was visible to you from the passenger’s seat, is it a fair assumption that the driver would have seen it?
Finn (defense attorney): I’m making an objection again to that testimony.
The Court: I think that goes to weight, not to admissibility. And the jury will hear the answer and determine what weight, if any, should be given.
Uetz: Thank you, Your Honor.
Q: Trooper [ ], from where a driver would have been seated in the car, would they have seen the gun?
A: Yes.
Q: Why do you say that?
[806]*806A: I believe that it would have been impossible for the driver of the vehicle not to see it. Since the fact that so much was protruding from in-between the console and the seat, there’s no way, in my opinion, that the driver couldn’t have seen it.
Q: And was it close to the back of the driver’s seat like towards the back of it, or was it up—
A: Towards the front.
Q: Okay. And does that have any significance to you?
A: Yes, it did.
Q: Could you tell the jury, please?
A: It would appear that the weapon belonged to the operator of the vehicle.
Finn: Excuse me. Continued objection to the opinion.
The Court: That objection is sustained. It’s a different objection. And that’s the question the jury will have to decide, as to who possessed the gun.
Uetz: Yes, Your Honor.
Q: Trooper Kurowski, in your experience as a Michigan State Police trooper, and all these traffic stops that you’ve been involved in, have you come across cars where individuals in the cars have had weapons in the car with them?
A: Yes.
Q: All right. Are there places where a weapon can be stored in a car that makes it more accessible?
A: Yes.
Q: And you saw this gun, you’ve already testified, between the driver’s seat and the console, closer to the driver’s side of the seat?
A: Yes.
Q: Based on your experience with the Michigan State Police and based upon your knowledge with accessibility and where guns are accessible, was this gun very accessible?
A: Yes, it was.
Q: When you observed the gun there, did that have any significance to you, the location right there?
A: Yes, it did.
Q: Can you tell the jury, please, what the significance is?
A: It appeared that the location of the weapon would have been accessible for the driver to either, one, make an attempt to assault my partner, myself, could have been— it appeared that it would have belonged to the driver.
Finn: Objection again to opinion testimony.
The Court: Sustained. And please don’t ask the same question a third time.
Uetz: Yes, Your Honor.

Kurowski’s testimony continued from there without incident, and the Government called its final witness, Steven Toth, a Supervisor and Special Agent with the Bureau of Alcohol, Tobacco & Firearms. The Government used Toth an expert in the area of interstate nexus of firearms and types of firearms, as a witness for two reasons. First, Toth could establish that the firearm in question had the interstate nexus required for the application of § 922(g). Second, Toth could clarify some of the apparent confusion that had arisen regarding the type of firearm found in Smith’s vehicle. The original indictment incorrectly described the firearm as a semiautomatic pistol. Before the start of trial, the Government moved for an amendment in the indictment to reflect that the weapon was actually a rifle. The district court allowed the amendment. On cross-examination, defense counsel questioned both Geyer and Kurowski about their identification, or misidentification, of the firearm. Because the interstate nexus of the firearm was not contested by the defense, the Government asked only a few brief questions regarding this issue “for the record.” After establishing the requisite nexus, [807]

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United States v. Smith, 70 F. App'x 804 (6th Cir. 2003).

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