United States v. Turner

287 F. App'x 426
CourtCourt of Appeals for the Sixth Circuit
DecidedJuly 9, 2008
Docket07-3095
StatusUnpublished

This text of 287 F. App'x 426 (United States v. Turner) is published on Counsel Stack Legal Research, covering Court of Appeals for the Sixth 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. Turner, 287 F. App'x 426 (6th Cir. 2008).

Opinion

OPINION

KAREN NELSON MOORE, Circuit Judge.

A jury convicted Defendant-Appellant Dionne D. Turner (“Turner”) of robbing a bank in Evendale, Ohio, in violation of 18 U.S.C. § 2113(a) and (d), and brandishing a firearm while committing a crime of violence, in violation of 18 U.S.C. § 924(c)(1)(A). The district court sentenced Turner to consecutive terms of 224 months and 84 months of imprisonment respectively. Turner appeals the district court’s denial of his motion to suppress evidence of a jacket containing a substantial amount of money found in his girlfriend’s car after the robbery at issue. Also, Turner appeals the denial of his motion to exclude a boot print found on a bank countertop at the scene of the crime. In addition, Turner appeals three evidentiary rulings made by the district court during his trial that he contends constitute cumulative error warranting a retrial. Finally, Turner appeals the denial of his motion for judgment of acquittal at the close of the evidence. For the following reasons, we AFFIRM the district court’s judgment.

I. BACKGROUND

A. Factual Background

1. The Robbery

On October 31, 2002, a gunman robbed the Fifth Third Bank located on Saint Rita Lane in Evendale, Ohio. He entered the bank shortly after it opened, yelling profane statements. He vaulted the bank tellers’ countertop and demanded currency in fifty and one-hundred dollar denominations. He grabbed the hair of customer-service representative Michelle Angus (“Angus”), and forced her to the floor. The robber held a gun to Angus’s head as another customer-service representative, Maher Kaddoura (“Kaddoura”), put money into a blue bag provided by the robber. Kaddoura testified that the robber wore “Timberland-kind of shoes, kind of bulky *428 shoes.” Joint Appendix (“J.A.”) at 368 (Kaddoura Test, at 1-163:8-9). Despite the fact that much of the robber’s face was covered, two bank employees, Kelly Fisher (“Fisher”) and Kaddoura, testified that the robber had a tattoo under one eye. After collecting the blue bag filled with money by Kaddoura, the robber went through a swinging teller door (instead of vaulting the counter again) and exited the building. Customer-service representative Fisher set off the alarm. Kaddoura wrote down the license-plate number of the getaway car and noted that an umbrella had been left between the bank’s front doors. Customer-service representative Sandy Crone (“Crone”) and personal banker Marcia Wood (“Wood”) were also present during the robbery.

2. The Vehicle Search

On November 8, 2002, Officer Jeffrey Ray (“Ray”), along with other officers, approached a parked car after Turner had exited the passenger side and entered a building. The record is clear that this was not a “traffic stop.” J.A. at 254 (Ray Test, at 94:11). The driver of the car was Turner’s girlfriend at the time, Alyscia Stone-Knight (“Stone-Knight”). Stone-Knight signed a consent form, and the officers proceeded “to search the vehicle for contraband.” J.A. at 248 (Ray Test, at 88:7). Ray took notes during the search. The officers recovered two items of note during the search: a “blue nylon Tommy Hilfiger bag,” J.A. at 249 (Ray Test, at 89:25), in the “back seat” of the vehicle, J.A. at 250 (90:5), and “a black leather jacket ... in the rear” of the vehicle. J.A. at 250 (Ray Test, at 90:9-10). A pocket of the leather jacket contained “a large amount of U.S. currency,” J.A. at 250 (Ray Test, at 90:17), in “large denominations, fifties and one hundreds.” J.A. at 251 (Ray Test, at 91:6-7). Ray testified that he did not ask Stone-Knight to whom the jacket belonged, but he did not think that it belonged to her because of its size; indeed, Ray believed that the jacket belonged to Turner. Ray also testified that the search uncovered “some small amount of marijuana.” J.A. at 567 (Ray Test, at 2 — 197:12— 14).

3. The Boot Print

During the course of the robbery, the suspect left a boot print on a piece of glass at a teller window; officers observed the suspect vaulting the countertop when they examined the bank’s surveillance photos. Officers removed the glass and sent it to a Federal Bureau of' Investigation (“FBI”) lab for testing. Fingerprint specialist Derrick Weems (“Weems”) testified that the lab followed a specific protocol for examining evidence. Weems testified that when he saw the boot print on the glass, he sent it to the “Questioned Documents” department because the process that he would employ to lift fingerprints would likely destroy the boot print. J.A. at 102 (Weems Test, at 58:2-6). Weems testified that once the shoe-print analysis had been completed, the glass was returned to him and he examined it for fingerprints. Weems testified that his fingerprint examination destroyed the boot print.

Michael Smith (“Smith”), a forensic examiner with the FBI, conducted tests on the boot print. He testified that photography was part of the shoe-print analysis, and that one could perform the analysis by examining the shoe itself and a proper photograph of the print. Smith testified that forensic photography provides the best quality lift for a shoe print on a piece of glass. When asked why an electrostatic lift had not been his preferred method of examining the boot print, Smith replied that, although the electrostatic lift was a method generally accepted by the scientific community, he chose not to use the elec *429 trostatic lift because it could have damaged the fingerprint evidence on the glass. 1 Smith testified that he did not know of a method, aside from the one that he used, to lift the boot print and still preserve any existing fingerprints. In addition, he testified that if he had known that fingerprints would not need to be lifted after his examination and if the photograph that he received from the forensic photographers “was not the quality that [he] wanted” J.A. at 179-80 (Smith Test, at 19:25-20:11), he might have used the electrostatic lift. Smith testified that he was sure, based on four points of comparison, that the positive identification between the boot submitted to him and the print on the glass was “one hundred percent accurate.” J.A. at 181 (Smith Test, at 21:19-21). Smith testified that the average number of points of comparison that allowed him to make a positive match was between four and seven.

The defense expert, Garry Koverman (“Koverman”), examined both the boot and the forensic photograph of the glass imprint; he made his own test impression of the boot for purposes of his analysis. He concluded that Smith’s first three points of comparison were “significant points of identification.” J.A. at 240-41 (Koverman Test, at 81:23-82:10). When asked if the electrostatic lift “improves on the quality of what you have to view,” Koverman stated that “[i]t is not a hard-fast rule, but, generally, I would say yes.” J.A. at 219 (Koverman Test, at 59:9-14). The defense expert also testified that the photograph of the shoe that was taken “looked okay,” but that he would have taken more photographs “in the search for more characteristics.” J.A. at 226 (Koverman Test, at 66:1-5).

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Bluebook (online)
287 F. App'x 426, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-turner-ca6-2008.