United States v. Terrill Lewis

375 F. App'x 917
CourtCourt of Appeals for the Eleventh Circuit
DecidedApril 20, 2010
Docket09-12996
StatusUnpublished

This text of 375 F. App'x 917 (United States v. Terrill Lewis) 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. Terrill Lewis, 375 F. App'x 917 (11th Cir. 2010).

Opinion

PER CURIAM:

Terrill Lewis appeals his convictions for possession of a firearm by a convicted felon, 18 U.S.C. § 922(g)(1) (“Count One”) and possession with intent to distribute cocaine, cocaine base, and marijuana, 21 U.S.C. §§ 841(a)(1), (b)(1)(C) and (b)(1)(D) (“Count Two”). He raises two issues on appeal.

I.

First, Lewis argues that the district court should not have allowed the prosecutor to argue that the seized gun and drugs were found in the same room with men’s clothes and adult pornography or to characterize Lewis as a convicted drug dealer during closing arguments without highlighting that his prior conviction was only relevant to Count One of the indictment.

Ordinarily we review allegations of pros-ecutorial misconduct de novo because it is a mixed question of law and fact. United States v. Eckhardt, 466 F.3d 938, 947 (11th Cir.2006). In analyzing allegations of prosecutorial misconduct, we assess whether the challenged comments were improper, and if so, whether they affected the substantial rights of the defendant. Id. “A defendant’s substantial rights are prejudi-cially affected when a reasonable probabili *919 ty alises that, but for the remarks, the outcome of the trial would have been different.” Id. (citation omitted). However, if “the record contains sufficient independent evidence of guilt, any error is harmless.” Id.

In evaluating a claim of prosecutorial misconduct, we examine the comments “in the context of the entire trial and in light of any curative instructions.” United States v. Wilson, 149 F.3d 1298, 1301 (11th Cir.1998) (citation omitted). Accordingly, “[reversal on the basis of prosecutorial misconduct requires that the misconduct be so pronounced and persistent that it permeates the entire atmosphere of the trial.” United States v. McLain, 823 F.2d 1457, 1462 (11th Cir.1987) (citation omitted), overruled on other grounds as recognized by United States v. Watson, 866 F.2d 381, 385 n. 3 (11th Cir.1989). In McLain, we found that the prosecutor’s misconduct did not warrant a reversal, but the cumulative effect of errors committed by the judge and the prosecutor denied the defendant of his right to a fair trial. Id.

Lewis concedes that he did not object to the prosecutor’s repeated characterization of him as a “convicted drug dealer” during closing argument. Therefore, plain error review applies to his arguments on that point. See United States v. Arias-Izquierdo, 449 F.3d 1168, 1185 n. 8 (11th Cir.2006). Under plain error review, the burden is on the defendant to establish: (1) error, (2) that is plain, (3) that affects substantial rights, and (4) that “seriously affects the fairness, integrity, or public reputation of judicial proceedings.” Id.

Here, Lewis’s prior conviction was admitted both to establish an element of Count One and, pursuant to Rule 404(b), as Count Two evidence that Lewis had the requisite intent to distribute, and Lewis did not object when the court instructed the jury that it could consider the evidence when determining whether he did, in fact, have the requisite intent. Therefore, there is no merit to his argument that the prosecutor should have referred to Lewis only as a convicted felon without reminding the jury that his conviction was for drug distribution.

While the jury could consider the prior conviction when determining whether Lewis had the requisite intent for Count Two, the prosecutor’s repeated references to him as a convicted drug distributor arguably could be seen as efforts to encourage the jury to improperly consider the prior conviction as propensity evidence. However, the district court properly instructed the jury as to the purpose for which the Rule 404(b) evidence was introduced. In addition, Lewis did testify in his own defense, so the prior conviction could impeach his credibility as well. See Fed.R.Evid. 609(a)(1). Moreover, there was sufficient evidence of Lewis’s guilt for the jury to convict him. Therefore, Lewis has not established that his substantial rights were violated by the prosecutor’s remarks.

Lewis next argues that the district court erred by allowing the prosecutor to argue that the seized firearm and drugs were found in the same room with men’s clothes and adult pornography, and that the error was further compounded by the court’s refusal to give a curative instruction to the jury. Instead, the court instructed the prosecutor to tell the jury that Lewis was not charged with possession of pornography and that the possession of pornography was not illegal, which allowed the prosecutor to repeat the word “pornography.” Finally, he argues that the court’s instructions at the beginning and the end of the trial that statements by the lawyers are not evidence were insufficient to overcome the repeated statements by the prosecutor. Therefore, Lewis’s *920 substantial rights were prejudiced, and his conviction should be reversed. 1

A prosecutor acts improperly at closing argument if his argument exceeds the evidence presented. However, a prosecutor may state conclusions drawn from the evidence during his closing argument. United States v. Bailey, 123 F.3d 1381, 1400 (11th Cir.1997). Here, the prosecutor’s references to “adult pornography” were not improper. Lewis had denied that he lived in the house when the drugs and guns were found. In response, the prosecutor pointed to evidence that he did reside in the residence including a picture of the bedroom saying: “Those are men’s clothes, [Exhibit] 1-J, men’s clothes, and adult pornographic videos.” We did not find this reference to be reversible error. Moreover, the Court instructed the prosecutor to advise the jury that Lewis was not charged with pornography and there was nothing illegal about possessing it, which the prosecutor did.

II.

Lewis also argues on appeal that there was insufficient information from which the district court could determine his competency to stand trial. He asserts that the district court erred by relying on its own observations of Lewis combined with a months-old evaluation of Lewis by the Bureau of Prisons (“BOP”) to find that Lewis was competent to stand trial and to deny his motion for a new competency evaluation. He asserts that this approach did not allow for his regression after being removed from the controlled environment of the mental health facility.

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Related

United States v. Bailey
123 F.3d 1381 (Eleventh Circuit, 1997)
United States v. Wilson
149 F.3d 1298 (Eleventh Circuit, 1998)
United States v. Sherwin Tyrneal Nickels
324 F.3d 1250 (Eleventh Circuit, 2003)
United States v. Ras Rahim
431 F.3d 753 (Eleventh Circuit, 2005)
United States v. Alvenis Arias-Izquierdo
449 F.3d 1168 (Eleventh Circuit, 2006)
United States v. Javier Izquierdo
448 F.3d 1269 (Eleventh Circuit, 2006)
United States v. Robert Eckhardt
466 F.3d 938 (Eleventh Circuit, 2006)
United States v. Dillard Earl Watson
866 F.2d 381 (Eleventh Circuit, 1989)
United States v. McLain
823 F.2d 1457 (Eleventh Circuit, 1987)

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Bluebook (online)
375 F. App'x 917, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-terrill-lewis-ca11-2010.