X

Thank you for sharing!

Your article was successfully shared with the contacts you provided.
Click here for the full text of this decision FACTS:Ronald Gene Harper and Jimmie Clyde Collins lived together at a house in Fort Worth. In June 2004, Demea Garrett, a confidential informant working for the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF), approached the house and asked Harper about purchasing crack cocaine. Harper told Garrett to return in 30 minutes. Garrett did not return 30 minutes later but did return on June 21, 2004, when he purchased 3.52 grams of cocaine base from Collins. Harper was in the room where the transaction occurred but did not participate in the sale. Four days later, on June 25, 2004, ATF executed a search warrant at the house. ATF officers found a surveillance camera on the front porch. They also found 28 guns in various locations in the house, including four hidden in the living room couch, and more than 11 grams of cocaine. ATF found cocaine hidden in the living room couch and in a microwave oven. Some of the cocaine was packaged for distribution in plastic baggies. ATF officers also found digital scales and empty plastic baggies in the house. Collins and Harper were at the house when ATF conducted its search. Authorities arrested them on traffic warrants but later released them on bond. After being given Miranda warnings at the house, Harper told an ATF agent that he lived in the middle room of the house. He denied knowledge of the drugs but admitted that his fingerprints would be on the guns, because he moved them. Collins told the same ATF agent that “everything in the house was his,” referring to the guns and a small quantity of marijuana. He denied knowledge of the crack cocaine in the microwave. ATF agents returned to the house a month later on July 26, 2004, to execute federal arrest warrants for Harper and Collins. Collins answered the door and was arrested. Harper was found sitting on the living room couch and was also arrested. Collins consented to a search, during which agents found two additional firearms in the couch and a bedroom, crack cocaine in the couch, heroin in the couch and video surveillance equipment. After being read his Miranda rights, Collins told an ATF agent that all the drugs and firearms in the house belonged to him. He admitted that he traded cash and crack cocaine for one of the guns. Authorities indicted Harper and Collins in a 10-count superceding indictment on Oct. 13, 2004. Authorities named Harper in five counts arising from only the June 25, 2004, search, including conspiracy to possess five grams or more of cocaine base with intent to distribute, possession of five grams or more of cocaine base with intent to distribute, using and maintaining premises to manufacture and distribute a controlled substance, possession of a firearm in furtherance of a drug trafficking crime and possession of a firearm by a convicted felon. Authorities named Collins in six counts arising from both the June 25, 2004, and July 26, 2004, searches, including conspiracy to possess five grams or more of cocaine base with intent to distribute (June 25), possession of five grams or more of cocaine base with intent to distribute (June 25), using and maintaining premises to manufacture and distribute a controlled substance (June 25), possession of a firearm in furtherance of a drug trafficking crime (June 25), possession of a controlled substance with intent to distribute (July 26) and possession of a firearm in furtherance of a drug trafficking crime (July 26). A jury convicted Harper and Collins of all charges in a joint trial. Collins did not testify at trial, but an ATF officer testified as to Collins’ admissions during both searches, over Harper’s Sixth Amendment objections. The district court instructed the jury not to consider Collins’ statements as evidence against Harper. The district court sentenced Harper under the sentencing guidelines to an aggregate sentence of 138 months of imprisonment and sentenced Collins to an aggregate sentence of 370 months of imprisonment. The court adopted the Presentence Investigation Report’s (PSR) recommendation and sentenced Collins to 60 months imprisonment on count No. 4 (possession of a firearm in furtherance of a drug trafficking crime, June 25) and 300 months imprisonment on count No. 10 (possession of a firearm in furtherance of a drug trafficking crime, July 26). Count No. 4 was adopted as a previous conviction, thereby increasing the penalty for count No. 10, which was deemed a second conviction. The district court ordered that the sentences for the two counts be served consecutively. HOLDING:Affirmed. Harper first challenged the district court’s denial of his Sixth Amendment challenge to the admission of Collins’ statements at trial, relying on the Supreme Court’s 2004 decision in Crawford v. Washington. Harper contended that allowing two ATF agents to testify about co-defendant Collins’ admissions during their joint trial violated his own rights under the confrontation clause of the Sixth Amendment, because Collins did not testify at trial, and Harper had no previous opportunity to cross-examine Collins. The government argued that Crawford did not apply, because the testimony was not offered against Harper but only against Collins. But Crawford, the court stated, makes no such distinction. Although the Sixth Amendment grants a criminal defendant the right “to be confronted with the witnesses against him,” Crawford makes clear that “witnesses against the accused” are simply those who “bear testimony . . . for the purpose of establishing or proving some fact.” In this case, the court stated, Collins’ testimonial statements were introduced for the purpose of establishing that Collins owned some of the narcotics and firearms found in the house. Despite the government’s contention that Collins’ statements were only introduced against Collins, the court found that the statements necessarily constituted testimony implicating Crawford. Having determined that Harper’s Sixth Amendment confrontation right was violated, the court turned to the harmless error analysis. Under the harmless error standard, reversal is required if there is a reasonable possibility that the improperly admitted evidence contributed to the conviction. The government’s case against Harper, the court stated, was based primarily on circumstantial evidence. The prosecution specifically relied on the large quantity of guns, surveillance equipment, marijuana, electronic scales and other equipment used to “cook” crack cocaine that were found during two searches of the residence. At closing argument, the prosecution argued that the overwhelming amount of circumstantial evidence showed that Harper was a willing participant in the conspiracy, as opposed to just someone who stayed at the house in exchange for taking care of the yard work, as Harper had claimed. But mere presence or association alone, the court stated, is insufficient to prove participation in a conspiracy. Collins’ statement, the court stated, that he was unaware of the crack cocaine in the microwave suggests that someone other than Collins was involved in cooking the crack in the microwave. This statement necessarily implicates Harper, the court stated. because it suggests that Harper was not merely a resident at the house, but was actively involved in the various drug-related crimes charged in the indictment. The court further stated, however, that Collins’ statement only became incriminating when linked with the other circumstantial evidence of Harper’s presence and activity at the house. Accordingly, the court found that “there does not exist the overwhelming probability of [the jury's] inability to” follow the judge’s admonition to consider the statement as evidence only against Collins. Thus, the court found that the district court’s Crawford error was harmless and did not constitute reversible error. Harper next argued that the district court erred in excluding the written conviction records of a state witness on the basis that they were repetitive of the witness’ admissions of the convictions during testimony. Given that Garrett admitted the prior convictions and was available for cross-examination, the court found that the district court did not abuse its discretion in excluding the exhibits. The court also found that the district court erred because it did not admit evidence of Garrett’s convictions for family-violence assault and theft-by-check. The court did not find evidence that the two convictions would have impeached Garrett’s credibility in a manner unique from the other admitted convictions. Thus, because the district court’s error did not affect the outcome of the proceedings, the court also found those errors to be harmless. Harper next argued that the district court erred when it refused to ask the jury panel three proposed questions about the jury’s ability to follow anticipated jury instructions about the law of conspiracy and aiding and abetting. But the court found that the district court did not abuse its discretion when it declined to ask questions about potential jurors’ ability to follow specific provisions of law and instead asked generally whether the jury would follow the law as instructed. As for Collins’ arguments, the court found that the district court did not err in using a conviction in the case as a previous conviction for sentencing purposes. The court also upheld the district court’s 370-month sentence. The district court only had discretion with regard to the 10-month sentence imposed for counts Nos. 10, 2, 3 and 9, the court stated. The district court lacked discretion to depart below the sentences it imposed for counts Nos. 4 and 10. OPINION:Owen, J.; King, DeMoss and Owen, JJ.

Want to continue reading?
Become a Free ALM Digital Reader.

Benefits of a Digital Membership:

  • Free access to 1 article* every 30 days
  • Access to the entire ALM network of websites
  • Unlimited access to the ALM suite of newsletters
  • Build custom alerts on any search topic of your choosing
  • Search by a wide range of topics

*May exclude premium content
Already have an account?

 
 

ALM Legal Publication Newsletters

Sign Up Today and Never Miss Another Story.

As part of your digital membership, you can sign up for an unlimited number of a wide range of complimentary newsletters. Visit your My Account page to make your selections. Get the timely legal news and critical analysis you cannot afford to miss. Tailored just for you. In your inbox. Every day.

Copyright © 2021 ALM Media Properties, LLC. All Rights Reserved.