After a four-day trial, a jury convicted Eddie Roosevelt Hands ("Hands") of one count of conspiracy to distribute and possess with intent to distribute narcotics, in violation of 21 U.S.C. § 846, and one count of distributing and possessing with intent to distribute cocaine, in violation of 21 U.S.C. § 841(a). The jury also determined that Hands should forfeit $725,000 pursuant to 21 U.S.C. § 853. The district court sentenced Hands to concurrent prison sentences of life on the conspiracy count and twenty years on the distribution and possession count. Hands appeals his conviction and the forfeiture award, contending that the trial court's erroneous admission of graphic evidence of his abuse of his wife and the prosecutor's improper statements during closing arguments deprived him of a fair trial.
State law enforcement agents, investigating drug activities in and around Monroe County, Alabama, brought drug-related charges against a number of people. Many of these people eventually pleaded guilty to drug charges; some of them, in the course of their cooperation with the government, identified Hands as a participant in the local drug trade. As a result of the investigation, a grand jury indicted Hands on one count of conspiracy to distribute large amounts of powder cocaine, crack cocaine, and marijuana, and one count of distributing and possessing with intent to distribute approximately two ounces of powder cocaine. The indictment also contained a forfeiture count, which alleged that Hands was subject to forfeit five parcels of real property
Hands's wife, Doris Hands, testified for the defense. Hands then took the stand on his own behalf. While cross-examining him, the prosecutor elicited testimony that he had been charged with beating his wife. The government then introduced into evidence six color photographs taken of Doris Hands shortly after the abuse, which showed her injuries. During the government's closing argument, the prosecutor repeatedly used inflammatory language to describe Hands. The jury returned guilty verdicts on both substantive charges and returned a verdict of forfeiture of $725,000.
A. Facts Surrounding the Admission of the Spousal Abuse Evidence
Doris Hands testified as part of Hands's case in chief that she had been at home full time, caring for her and Hands's children,
Subsequently, Hands took the stand in his own defense. On cross-examination, the prosecutor asked Hands about his use of a number of guns, specifically questioning him about how often he had carried a particular handgun.
The prosecutor then moved to admit into evidence six Polaroid photographs of Doris Hands taken after the beating. At sidebar, defense counsel objected to the line of questioning and the admission of the photographs, arguing that the evidence was irrelevant and overly prejudicial. The judge replied,
The judge also stated that the prosecution could use the wife-beating evidence to show that the pistol permit "was revoked when he beat up his wife."
B. Admissibility of the Spousal Abuse Evidence
We review the district court's evidentiary rulings for abuse of discretion. See United States v. Johnson, 139 F.3d 1359, 1365 (11th Cir.1998), cert. denied, ___ U.S. ___, 119 S.Ct. 2365, ___ L.Ed.2d ___ (1999). We conclude that the spousal abuse evidence was inadmissible because it was irrelevant. See Fed.
"`Relevant evidence' means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence." Fed.R.Evid. 401. The government argues that the domestic violence evidence was relevant in three ways. First, it suggests, the entire line of questioning that began with Hands's statement that he had not carried a handgun since the sheriff took away his permit demonstrated the reasons underlying the sheriff's revocation of Hands's handgun permit, which in turn helped to show that Hands continued to carry a handgun after the revocation.
Second, the government argues that the spousal abuse evidence was relevant because it contradicted the testimony of Doris Hands. This evidence could serve no such impeachment purpose, however, because it did not contradict Doris Hands's testimony: nothing she said on the stand conflicted with evidence that her husband had abused her. The judge stated at sidebar that the evidence of domestic abuse impeached her testimony because she had "presented herself as a dutiful wife who stayed at home all the time and had nothing to do but look after her dear husband."
Finally, the government asserts that the evidence was relevant because it suggested that Hands might have been lying when he stated the reasons for the permit revocation. Otherwise irrelevant evidence sometimes may be admissible when used to impeach a witness's testimony. "Although it is not one of the ... permissible purposes [listed in Fed.R.Evid. 404(b) for introducing evidence of a criminal
Even if the spousal abuse testimony and photographs had been relevant, this evidence did not meet the balancing test set out in Federal Rule of Evidence 403. Under Rule 403, relevant "evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury." Fed.R.Evid. 403. Rule 403 is an "extraordinary remedy," United States v. Utter, 97 F.3d 509, 514 (11th Cir.1996) (citation omitted), whose "major function ... is limited to excluding matter of scant or cumulative probative force, dragged in by the heels for the sake of its prejudicial effect." United States v. Cross, 928 F.2d 1030, 1048 (11th Cir.1991) (internal quotation omitted). Although Rule 403 carries a "strong presumption in favor of admissibility," United States v. Church, 955 F.2d 688, 703 (11th Cir.1992), the domestic violence evidence's prejudicial nature so heavily outweighed its probative value that the district court should have excluded it. See, e.g., id. (finding error where district court failed to exclude evidence whose danger of unfair prejudice substantially outweighed its probative value).
The evidence had minimal probative value. As discussed above, Hands's testimony that he had physically assaulted his wife did not help to prove any element of the government's case against Hands; its only even arguably legitimate purpose, which we have rejected, was to impeach the testimony of Hands and Doris Hands. The photographs had even less value: because Hands had conceded the point that the government wished to establish—that someone had filed charges against him in connection with a 1994 incident resulting in injury to Doris Hands—the photographs would have been superfluous even if this line of questioning had been appropriate.
On the other side of the Rule 403 inquiry, the evidence had great potential to incite unfair prejudice. Some types of extrinsic acts are particularly "likely to incite a jury to an irrational decision," Church, 955 F.2d at 702; few would doubt that violent spousal abuse falls into this category.
C. The Error's Effect on the Verdict
An erroneous evidentiary ruling will result in reversal only if the resulting error was not harmless. See Church, 955 F.2d at 700; Fed.R.Crim.P. 52(a). An error is harmless unless "there is a reasonable likelihood that [it] affected the defendant's substantial rights." United States v. Hawkins, 905 F.2d 1489, 1493 (11th Cir.1990). We need not reverse Hands's conviction if the error "had no substantial influence on the outcome and sufficient evidence uninfected by error supports the verdict." Fortenberry, 971 F.2d at 722. An error may substantially influence an outcome and thus warrant reversal even if the evidence, had no error occurred, would have been sufficient to support the conviction. See United States v. Marshall, 173 F.3d 1312, 1318 & n. 15 (11th Cir.1999) (finding two evidentiary errors not harmless and reversing convictions despite finding that defendant's challenge to the sufficiency of the evidence was "without merit" because one witness's "testimony, if believed, would be more than sufficient to sustain [the] convictions"); see also United States v. Edwards, 576 F.2d 1152, 1155 (5th Cir.1978). We determine whether an error had substantial influence on the outcome by weighing the record as a whole, see United States v. Montalvo-Murillo, 495 U.S. 711, 722, 110 S.Ct. 2072, 2080, 109 L.Ed.2d 720 (1990), examining "the facts, the trial context of the error, and the prejudice created thereby as juxtaposed against the strength of the evidence of defendant's guilt," Reed, 700 F.2d at 646 (citation omitted). This inquiry leads us to conclude that the erroneous introduction of the domestic violence evidence was not harmless.
We first examine the nature of the evidence against Hands. This circuit has found even prejudicial nonconstitutional error harmless in criminal cases in which the government has presented highly convincing, admissible evidence of a defendant's guilt, such as a confession, see United States v. Ballard, 586 F.2d 1060, 1062 (5th Cir.1978); audiotapes or videotapes of the defendant engaging in or discussing the alleged criminal activity, see United States v. Wilson, 149 F.3d 1298, 1302 (11th Cir.1998); the defendant's fingerprints on contraband, see United States v. Mendez, 117 F.3d 480, 482, 486 (11th Cir.1997); drugs or other incriminating items found in the defendant's possession, see Wilson, 149 F.3d at 1302; and extensive documentary evidence of the crime, see United States v. Mills, 138 F.3d 928, 936 (11th Cir.), cert. denied, ___ U.S. ___, 119 S.Ct. 515, 142 L.Ed.2d 427 (1998). In many of these cases, compelling physical evidence combined with the testimony of unbiased observers, creating an overwhelming case against the defendant. See id. (documentary evidence supported by several uncontradicted, unbiased witnesses); Mendez, 117 F.3d at 482, 486 (several unbiased witnesses). The government presented no similarly compelling pieces of evidence in this case.
Although the indictment alleged that Hands had distributed drugs from his
The government presented some circumstantial evidence that Hands was involved in illegal activities. For example, it showed that Hands, a self-employed logger and bulldozer operator, appeared to have spent more money than he had claimed to earn on his tax returns because his house had several rooms and a chandelier, he had a driveway with a gate, and he owned several cars and pieces of logging equipment. Hands countered this evidence with testimony that, had the jury credited it, would have explained the apparent discrepancy between his standard of living and his earnings. His witnesses stated that he had inherited his land, had built the improvements on his house himself, and had ordered the chandelier from the J.C. Penney catalog; he also claimed that most of his cars were old ones that he had repaired. He conceded that he had not reported all of his income from his businesses to the tax authorities. Furthermore, Hands's lifestyle, although more comfortable than his tax returns might have suggested, was less lavish than the jury might have expected in light of the multimillion-dollar drug trade that the government had attributed to him. In sum, Hands's standard of living does not constitute overwhelming evidence that he was a major drug dealer.
The backbone of the government's case on Count One, the conspiracy count, was the testimony of eight people.
On Count Two, the distribution and possession count, the government relied even more heavily on testimony of questionable veracity than it did on Count One. After Ricky Parrish, who had been arrested, decided to cooperate with the authorities, he led police to a place on his property where he stored 1½ ounces of cocaine. Although Parrish had several cocaine suppliers, he claimed that he had purchased that particular cocaine from Hands on credit. Parrish hoped to receive a reduced sentence as a result of his testimony; like all of the prosecution's main witnesses, he therefore had an incentive to lie about the source of the drugs. Physical evidence did not corroborate Parrish's testimony (although Parrish stated that Hands had handled the plastic bag containing the cocaine, the government introduced no fingerprint evidence). The jury also could have found his testimony questionable in light of his other testimony that his practice was to buy much smaller amounts of cocaine from Hands (3½ grams every two or three weeks).
We do not suggest that a jury may not convict a defendant based upon testimony that is given in exchange for favorable treatment by the prosecution. If a jury finds it credible, testimony such as that heard in this case will be sufficient to support a conviction.
The government's case against Hands contained weaknesses similar to those identified in Marshall: the direct evidence consisted entirely of the testimony of witnesses
Having determined that the prosecution's case was not overwhelming, we assess the potential impact of the improperly admitted evidence. As discussed above, the evidence was highly prejudicial. The testimony the prosecutor elicited from Hands demonstrated that Hands had beaten his wife, an offense that was likely to anger the jurors and could have impelled them to render an adverse verdict in order to punish Hands. During her closing argument, the prosecutor reminded the jury that Hands had beaten his wife "severely."
When assessing the effect of the evidentiary error upon the case as a whole, we also must consider the prosecutor's closing argument. The prosecutor conducted the argument in such an overzealous manner
Blakey, 14 F.3d at 1561 (quoting Hall v. United States, 419 F.2d 582, 587 (5th Cir. 1969)).
Second, the prosecutor misstated the evidence in several ways. For example, she stated that when she asked Hands whether he had beaten his wife, he answered "Yeah," then changed his story and claimed that they had had a "tussle."
Finally, the prosecutor improperly told the jury that an uncalled witness would have corroborated another witness's testimony on an important point. During her opening statement, the prosecutor told the jury that she planned to call Darlene Steele, Bill Steele's wife, to the
A prosecutor ordinarily acts improperly if she attempts to bolster testimony by vouching for a witness's credibility.
United States v. Eyster, 948 F.2d 1196, 1206 (11th Cir.1991) (citations omitted); see also United States v. Martinez, 96 F.3d 473, 476 (11th Cir.1996) ("[A]rgument to the jury must be based solely on the evidence admitted at trial."). The prosecutor's statement that Darlene Steele's testimony would have "corroborated" Bill Steele's was an improper attempt to bolster Bill Steele's credibility. This attempt was especially likely to affect the verdict because the jury could have found the cryptic references to "E." and "E.H." to be the most convincing pieces of evidence against Hands.
Hands's counsel did not draw the trial court's attention to the prosecutor's misconduct by objecting. Were the misconduct the only issue before us, we therefore would review it for plain error, and would reverse only if we determined that the misconduct was "so obvious that failure to correct it would jeopardize the fairness and integrity of the trial," Bailey, 123 F.3d at 1400. We do not proceed to this inquiry, however, because we assess not the prosecutorial misconduct alone, but the combined impact of the errors on the verdict. See United States v. Labarbera, 581 F.2d 107, 110 (5th Cir. 1978) (holding that "cumulative effect of [multiple] errors" worked to deprive defendant of fair trial, although some errors, standing alone, would be subject to plain error review and others might be harmless); Sanchez, 176 F.3d at 1220, 1225 (not resolving plain error question where cumulative effect of errors compelled reversal); cf. United States v. McLain, 823 F.2d 1457, 1462 (11th Cir.1987) (holding that although prosecutorial misconduct alone would not have merited reversal, "the cumulative effect of the errors committed by the judge and the prosecutor ... denied the defendants a fair trial"). The elements of this case—the introduction of highly inflammatory, irrelevant evidence; the nature of the government's case, which depended on the jury's assessment of the relative credibility of the prosecution and defense witnesses; and the additional prejudice created by the prosecutor's misconduct—add up to a conclusion that the improper admission of evidence was not harmless error.
For the foregoing reasons, we REVERSE and REMAND to the district court for further proceedings in accordance with this opinion.
The prosecutor's misconduct during closing arguments, discussed more fully below, also tainted this evidence with an element of error because the prosecutor improperly stated that a witness she had not called to the stand would have corroborated Bill Steele's statement that the notations stood for Hands.