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Criminal Practice – Murder-for-Hire – Evidence – Prior Shooting – Harmless Error

U.S. v. Byers (Lawyers Weekly No. 11-01-0490, 32 pp.) (Traxler, J.) No. 09-4439, May 6, 2011; USDC at Baltimore, Md. (Bennett, J.) 4th Cir. Click here for the full-text opinion.

Holding: Even assuming the district court erred in allowing testimony about defendant’s alleged prior shooting of another man, or testimony from the later murder victim’s girlfriend, the 4th Circuit says any errors were harmless and did not unfairly affect the trial of two codefendants in this murder-for-hire case involving the fatal shooting of a witness to prevent him from testifying against one of the codefendants in a state murder trial.

Appellant Patrick Byers argues the district court abused its discretion in admitting testimony under Fed. R. Evid. 404(b) that in 2004 Byers shot Carlile Coleman on the same North Montford Street block where Larry Haynes was killed in 2006. We disagree.

The district court concluded the 2004 shooting was important to several critical issues at Byers’ trial for the 2007 conspiracy to kill Carl Lackl, who was expected to be the only witness to place Byers at the scene of the 2006 murder of Haynes. The district court reasoned the Coleman evidence was relevant to establish identity in light of the similarities between the Coleman shooting and the Haynes murder. The similarities: Both involved control over drug turf, both of the shootings were at close range with a semi-automatic handgun in broad daylight, and both were linked in geographical proximity.

Because the evidence plausibly suggested a common theme to the shooting of Coleman and the murder of Haynes, we conclude that the Coleman shooting was relevant to the charges against Byers for the murder of Lackl. Byers’ motive for killing Lackl was connected to the strength of Lackl’s identification of Byers in the Haynes murder. We also reject Byers’s argument that the Coleman evidence was not “necessary” as required by Rule 404(b).

We conclude the district court did not abuse its discretion in admitting the Coleman evidence. The district court admitted the evidence for permissible purposes under Rule 404(b) and not merely to show general criminal disposition. Even if the district court abused its discretion in admitting evidence of the Coleman shooting, the error was harmless. The government introduced overwhelming evidence of Byers’ guilt in planning and executing Lackl’s murder, with a witness’s direct testimony that Byers ordered and paid for the hit and with the confession of the actual killer. The evidence established an obvious motive for Byers to kill Lackl – elimination of the sole remaining witness against him on state murder charges. Due to the strong evidence suggesting Byers planned the murder-for-hire against Lackl, we can say with “fair assurance” the evidence of Coleman’s non-fatal shooting was harmless.

We also find no error in the district court’s permitting, and then failing to give a curative instruction about, Malinda Humes’ testimony that she warned her boyfriend Lackl his involvement as a witness would get him killed. Even if we assume Humes’ statement was improper and inadmissible, a district court does not commit plain error merely because it fails to give a curative instruction sua sponte anytime improper evidence comes out during trial, and any such error was harmless.

Byers’s codefendant, Frank Goodman, argues the district court abused its discretion in permitting the government to call Michelle Fisher as a rebuttal witness. The government called Fisher to testify about calls Goodman made to her using a cell phone while he was in prison. On appeal, Goodman argues the testimony was improper rebuttal testimony because Fisher’s testimony during Goodman’s case-in-chief related to two different types of phones. Any error was harmless and does not warrant reversal, considering the overwhelming evidence of Goodman’s direct involvement in the plot to murder Lackl.

Finally, Goodman challenges the district court’s denial of his motion to suppress his post-arrest statements on involuntariness grounds. He argues Detective Ruby falsely promised that Goodman would not be charged in connection with Lackl’s murder. In denying the motion to suppress, the district court found that up until 11:22 p.m., when the first alleged “false promise” was made, there was “absolutely no indication of any kind of deception.” The district court likewise found that, as to statements made after that point in time, there was no “willful deception.” Looking to the totality of the circumstances, and after reviewing the videotapes of Goodman’s detention, we agree Goodman’s statements were not unconstitutionally coerced. We find no promises, implicit or otherwise, from Detective Ruby to Goodman. If the detective’s statements about Goodman being charged in the Lackl murder are taken in context, it is clear he never told Goodman he would not be charged. Goodman could not have reasonably concluded he would not face charges, and there is no indication the detective’s statements critically impaired Goodman’s capacity for self-determination.

Convictions affirmed.

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