United States v. Thomas C. Hill

60 F.3d 672, 42 Fed. R. Serv. 227, 1995 U.S. App. LEXIS 16780, 1995 WL 404212
CourtCourt of Appeals for the Tenth Circuit
DecidedJuly 10, 1995
Docket93-3316
StatusPublished
Cited by63 cases

This text of 60 F.3d 672 (United States v. Thomas C. Hill) is published on Counsel Stack Legal Research, covering Court of Appeals for the Tenth 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. Thomas C. Hill, 60 F.3d 672, 42 Fed. R. Serv. 227, 1995 U.S. App. LEXIS 16780, 1995 WL 404212 (10th Cir. 1995).

Opinions

[674]*674EBEL, Circuit Judge.

Defendant-Appellant Thomas C. Hill (“Hill”) appeals his jury conviction on one count of possession of cocaine base in violation of 21 U.S.C. § 844, and one count of possessing a firearm in relation to a drug trafficking offense in violation of 18 U.S.C. § 924(c). Hill argues that the district court erred: (1) by admitting witness testimony that Hill was a “dope dealer”; (2) by -admitting evidence under Fed.R.Evid. 404(b) that Hill had been in possession of cocaine base on two prior occasions; and (3) by denying Hill’s motion to suppress evidence obtained during the traffic stop that forms the basis of this case. We exercise jurisdiction under 28 U.S.C. § 1291 and, for the reasons set forth below, AFFIRM Hill’s convictions on both counts.

BACKGROUND

On March 24, 1993, Officer Shawn Noblitt of the Wichita Police Department was on patrol with a civilian observer, Sherri Harris. After witnessing a car turn left without using a turn signal, Officer Noblitt turned on his lights and siren to stop the car and cite the driver for a traffic violation. The car continued for approximately two and a half blocks, slowly drifting between the lane and the curb before pulling to the side of the road. There were three individuals in the car’s front seat: the driver, James Gassaway; the middle passenger, Marquiz Alford; and the defendant Hill, on the passenger’s side.

When the vehicle finally stopped, Noblitt parked his patrol car behind it. Harris remained in Noblitt’s patrol car while Noblitt exited to speak to the passengers in the stopped vehicle. While approaching the parked car from behind, Officer Noblitt noticed that neither the driver nor Hill were wearing their shoulder safety belts, which is also a traffic infraction. Noblitt also noticed Alford and Hill talking, and watched Hill reach toward the passenger side window. This activity, along with the car’s failure immediately to pull over, concerned Noblitt and prompted him to instruct all three passengers to keep their hands on the dashboard where he could see them. Although Noblitt repeated this instruction several times, Hill failed to comply.

After speaking with the driver, who was unable to produce a driver’s license, Officer Noblitt walked around the vehicle to the passenger side in order to cite Hill for failing to wear a safety belt. Hill told Noblitt his name, although Hill carried no identification, and Noblitt believed he recognized the name from the police “Interwateh Bulletin,” which alerts officers to individuals with outstanding warrants. He also thought he recognized Hill from a previous domestic disturbance call. Based on these beliefs, Hill’s refusal to remain still or keep his hands in Noblitt’s view as directed, and a need to separate Hill from the car’s other occupants for safety purposes, Officer Noblitt ordered Hill out of the car in order to issue the safety belt citation.

As Hill was exiting the car, he told Officer Noblitt that he had a gun hidden at his waistline. Noblitt called for backup assistance, confiscated the weapon, and placed Hill in handcuffs. While trying to confiscate the gun, Officer Noblitt noticed that Hill had his right hand “cupped” away from Noblitt’s view.

At that point, Officer Noblitt noticed for the first time a plastic bag containing a white substance, later determined to be cocaine base, lying at Hill’s feet. As Noblitt was moving Hill to his patrol car, Noblitt found a second bag that also contained cocaine base about three feet behind the vehicle on the passenger’s side. Noblitt’s passenger, Harris, testified that from her vantage point in Noblitt’s patrol car, about eight feet behind the stopped vehicle, she had seen Hill throw that second bag out the passenger window while Noblitt was initially speaking to the vehicle’s driver.

Hill was subsequently indicted and tried for possessing cocaine base and for possessing a firearm in relation to a drug trafficking offense. Because the original jury was unable to reach a verdict, Hill’s first prosecution ended in a mistrial. At retrial, a second jury convicted Hill of both counts. Hill appeals those convictions here.

[675]*675ANALYSIS

Hill argues that his convictions should be set aside because the district court improperly admitted three pieces of evidence: (1) witness testimony that Hill was a “dope dealer”; (2) officers’ testimony that Hill had been arrested in possession of cocaine base on two prior occasions; and (B) evidence obtained after Officer Noblitt ordered Hill to step out of the car, including Hill’s admission that he was carrying a firearm, the firearm itself, and the bag of cocaine base found at Hill’s feet.1 We address each piece of evidence in turn.

I.

Admitting Witness Testimony That Hill Is A “Dope Dealer.”

Hill first challenges the district court’s admission of testimony by witness Marquiz Alford, the passenger who was seated between Hill and the driver. Alford testified that he had known Hill for about four years, that Hill had a lot of money, and that he believed Hill obtained that money working as “a dope dealer.” Hill argues on appeal that Alford’s characterization of Hill as “a dope dealer” was improperly admitted under Fed.R.Evid. 404(b).

Because Hill failed contemporaneously to object to this testimony at trial, however, he has not properly preserved this argument for review.2 See Fed.R.Evid. 108(a); United States v. Deluzio, 454 F.2d 711, 713 (10th Cir.), cert. denied, 407 U.S. 922, 92 S.Ct. 2467, 32 L.Ed.2d 808 (1972). It appears that Hill did object to this testimony for “lack of foundation” in a motion for acquittal or new trial after his conviction. That objection, however, does not make up for the failure to object when the evidence was proffered at trial. See Joseph v. Terminix Int’l Co., 17 F.3d 1282, 1286 (10th Cir.1994). Absent such a contemporaneous objection at trial, we review the admission of Alford’s statement only for “plain error.” Deluzio, 454 F.2d at 713. We reverse only if admitting the statement placed the underlying fairness of the entire trial in doubt, Joseph, 17 F.3d at 1286, or if it affected one of the defendant’s substantial rights, see Fed. R.Evid. 103(a) & (d). We conclude that the admission of Alford’s statement did not constitute an error of such magnitude.

The statement was an isolated remark in the context of an entire trial. See Deluzio, 454 F.2d at 713 (holding that improper evidence of nonrelated crimes was “not so inflammatory or frequent so as to constitute plain error”). Hill cross-examined and recross-examined Alford at trial. And the judge provided the jury with written instructions not to consider evidence “related to possible unlawful acts by the defendant other than the specific offenses charged ...

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

Related

United States v. Guinn
89 F.4th 838 (Tenth Circuit, 2023)
United States v. Dalton
918 F.3d 1117 (Tenth Circuit, 2019)
United States v. Reyes
202 F. Supp. 3d 1209 (D. Kansas, 2016)
United States v. Yanez-Rodriguez
632 F. App'x 442 (Tenth Circuit, 2015)
United States v. Madsen
614 F. App'x 944 (Tenth Circuit, 2015)
United States v. Farmer
770 F.3d 1363 (Tenth Circuit, 2014)
United States v. Henderson
564 F. App'x 352 (Tenth Circuit, 2014)
United States v. Esquivel-Rios
725 F.3d 1231 (Tenth Circuit, 2013)
United States v. Leutwiler
446 F. App'x 970 (Tenth Circuit, 2011)
United States v. Alatorre-Guevara
371 F. App'x 967 (Tenth Circuit, 2010)
Varricchio v. County of Nassau
702 F. Supp. 2d 40 (E.D. New York, 2010)
People v. McNeely
222 P.3d 370 (Colorado Court of Appeals, 2009)
United States v. Campbell
609 F. Supp. 2d 674 (E.D. Michigan, 2009)
United States v. Parker
553 F.3d 1309 (Tenth Circuit, 2009)
Hornick v. Boyce
280 F. App'x 770 (Tenth Circuit, 2008)
People v. Eirish
165 P.3d 848 (Colorado Court of Appeals, 2007)
State v. Booker
135 P.3d 57 (Court of Appeals of Arizona, 2006)
United States v. Herrera
444 F.3d 1238 (Tenth Circuit, 2006)
People v. McGhee
709 N.W.2d 595 (Michigan Court of Appeals, 2006)

Cite This Page — Counsel Stack

Bluebook (online)
60 F.3d 672, 42 Fed. R. Serv. 227, 1995 U.S. App. LEXIS 16780, 1995 WL 404212, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-thomas-c-hill-ca10-1995.