United States of America v. Mills, 194 F.3d 1108 (10th Cir. 10/19/1999)

[1] U.S. Court of Appeals, Tenth Circuit

[2] No. 98-1378

[3] 194 F.3d 1108, 1999

[4] October 19, 1999

[5] UNITED STATES OF AMERICA, PLAINTIFF - APPELLEE,
v.
STEVEN MILLS, DEFENDANT - APPELLANT.

[6] APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO (D.C. NO. 97-CR-346-D)

[7] Submitted on the briefs: *fn1 Michael G. Katz, Federal Public Defender, and Jenine Jensen, Assistant Federal Public Defender, Denver, Colorado. Jessica Dunsay Silver and Louis E. Peraertz, Department of Justice, Washington, D.C.

[8] Before Anderson, Kelly, and Briscoe, Circuit Judges.

[9] The opinion of the court was delivered by: Anderson, Circuit Judge.

[10] PUBLISH

[11] Following a jury trial, Stephen S. Mills was convicted of depriving a federal prisoner of his Eighth Amendment right to be free from cruel and unusual punishment, in violation of 18 U.S.C. § 242. On appeal, Mills contends the district court erred by: (1) admitting a videotape as evidence; (2) refusing to permit certain sidebar conferences and overruling certain objections as untimely; and (3) increasing his sentence for obstruction of Justice. Mills also contends that he received ineffective assistance of counsel due to his counsel's failure to move for a downward departure based on Mills' former status as a corrections officer. We affirm.

[12] BACKGROUND

[13] According to the trial testimony, on February 15, 1996, at the United States Penitentiary in Florence, Colorado, various official escort teams were moving inmates from their cells to a conference room in order to conduct individual interviews about an inmate stabbing which had occurred the previous day. As part of the warden's program to curtail a problem with prison guards beating inmates, each escort team was required to designate a team member to videotape the inmate escort. At that time, Mills was employed as an inmate counselor at the penitentiary.

[14] A team of four correctional officers was assigned to escort inmates from the Delta A unit, with the most junior officer designated to videotape the escorts. When the escort team approached the cell of inmate Fred Davis, Mills was already in the cell speaking to Davis. The junior officer began taping as Davis was ordered to "cuff-up" for the move. When Davis did not comply, a brief fight ensued, during which the three senior members of the escort team entered the cell, restrained Davis facedown on the floor, and handcuffed him with his hands behind his back. As soon as Davis was handcuffed, Mills assaulted him-first by jumping on Davis' head and shoulder area, and then by beating Davis with his fists. Meanwhile, concerned that the inmate had not arrived for the interview, the unit manager approached the cell to check on the transfer. When he observed Mills beating Davis, he ordered him to stop, and he ordered the escort team to take Davis to the hospital. The escort team then pulled Davis up and moved him out of the cell.

[15] Mills was subsequently charged with acting under color of law to willfully deprive Davis of his Eighth Amendment rights and causing bodily injury, in violation of 18 U.S.C. § 242. At trial, two of the senior escort team members, as well as the junior officer in charge of taping, testified that they witnessed Mills beating Davis after Davis was restrained on the floor, handcuffed, and no longer posed any threat. R. Vol. V at 210-13, 262-64; R. Vol. VIII at 331. The unit manager also testified that he witnessed Mills beating Davis under the same circumstances. R. Vol. VIII at 299-301. The fourth escort team member claimed his back was turned during the critical period, and therefore he did not see the complained-of assault. Id. at 426, 430, 439, 451. The videotape was admitted into evidence, although it did not show the assault. Instead, the tape showed only the initial arrival at the cell and the subsequent escort down the hall from the cell with Davis handcuffed. The digital time designation which appeared on the tape displayed a time gap between the recorded arrival and the exit down the hall, indicating a five minute interval for which no recorded images existed.

[16] The junior officer testified that the camera had been working properly, and that he had accurately recorded the entire assault. However, immediately after the incident, as the other team members were moving down the hall, Mills ordered him to hand over the camera. R. Vol. V at 218. Although the officer denied knowing exactly what Mills did when he took the camera, two other officers heard Mills say that he was rewinding the tape, and another escort team officer admitted that Mills later said he rewound the tape to do away with the kicking. R. Vol. VIII at 345, 357, 452-53. After rewinding the tape, Mills returned the camera to the junior officer and told him to begin filming again from that point. The officer complied by filming the escort down the hall. Later in the day, Mills again approached the junior officer, and advised him that, if he should ever encounter a similar situation, he should not accurately film the event. R. Vol. V at 226. At trial, the junior officer identified the admitted videotape as the one which he recorded, although he noted that the beating incident had apparently been recorded over.

[17] DISCUSSION

[18] A. Admission of the Videotape

[19] Mills contends that the district court erred by admitting the videotape into evidence. We review the trial court's admission of evidence for abuse of discretion. United States v. Green, 175 F.3d 822, 833 (10th Cir. 1999).

[20] When proffered evidence has distinctive characteristics which make it unique, readily identifiable, and relatively resistant to change, its foundation for admission may be established by testimony that the evidence is what its proponent claims it to be. Fed. R. Evid. 901; United States v. Johnson, 977 F.2d 1360, 1367 (10th Cir. 1992); United States v. Cardenas, 864 F.2d 1528, 1531 (10th Cir. 1989); see also United States v. McIntyre, 836 F.2d 467, 470 (10th Cir. 1987) (noting the proper admissibility of an audiotape "where a witness who heard the statements also testifies and the recording gives independent support to his testimony"). In this case, the officer responsible for filming the escort testified as to the authenticity of the tape, and he confirmed that, except for the deleted portion, it accurately depicted the entire episode. Moreover, the independent date and time information which appears on the tape provides further indication of the tape's reliability.

[21] Nonetheless, Mills argues the tape should not have been admitted because no chain of custody was established, and because it had clearly been tampered with. In response, the government readily concedes that a portion of the tape had been recorded over. However, it correctly notes that the resulting deletion did not affect the accuracy of the remaining images, including the clear indication that some of the event was missing. Therefore, except for the obvious deletion, the evidence is "readily identifiable," "with sufficient completeness to render it improbable that the original item has either been exchanged with another or been contaminated or tampered with." Cardenas, 864 F.2d at 1531. In such circumstances, the proponent need not establish chain of custody. *fn2 Id. Accordingly, we find no error in the district court's admission of the videotape.

[22] B. Rulings on Requested Sidebars and Objections

[23] Mills next complains about the district court's refusal to conduct four requested sidebars, and he also contends that the court's announcement of an automatic no sidebar rule constitutes a clear abuse of discretion.

[24] We review the district court's control of its trial proceedings for abuse of discretion. United States v. Hanif, 1 F.3d 998, 1002 (10th Cir. 1993). Under this deferential standard, we will not overturn the district court's directions regarding the presentation of evidence absent a manifest inJustice to the parties. Strickland Tower Maintenance, Inc. v. AT & T Communications, Inc., 128 F.3d 1422, 1430 (10th Cir. 1997) (finding no abuse of discretion in the court's decision to time-limit the presentation of evidence in the interest of judicial administration).

[25] Notably, each of the four refusals to hold a sidebar which Mills criticizes relates to government requests following the court's overruling of government objections. Despite the fact that these rulings ostensibly favored his defense, Mills nonetheless contends that the court's actions actually caused a manifest inJustice to him. Thus, he argues that the government's requests for sidebars, which contained references to prior in limine proceedings, suggested inadmissible evidence to the jury. In particular, Mills decries the possibility that the denied requests might have suggested his counsel was either incompetent or unethical. Given the court's favorable treatment vis à vis Mills in these instances, we disagree. Additionally, we disagree with Mills' interpretation that one of the court's statements constituted an absolute bar to sidebars. *fn3 Accordingly, we conclude that the court properly exercised its discretion to control the trial without "needless consumption of time." See Fed. R. Evid. 611(a); Strickland Tower Maintenance, 128 F.3d at 1430.

[26] Mills also claims the district court improperly overruled objections on four occasions. As to the two rulings which involve Mills' own objections, *fn4 the objections came immediately after the witness responded, and the court overruled both as untimely.

[27] We will uphold the district court's rulings on properly made objections unless the court abused its discretion, and caused "manifest inJustice to the parties." Angelo v. Armstrong World Indus., Inc., 11 F.3d 957, 960 (10th Cir 1993) (quoting Comcoa, Inc. v. NEC Tel., Inc., 931 F.2d 655, 663 (10th Cir. 1991)). That is, under Fed. R. Evid. 103(a), "[e]rror may not be predicated upon a ruling which admits or excludes evidence unless a substantial right of the party is affected." When objections are not timely made, we review only for plain error. See Angelo, 11 F.3d at 960. As a threshold matter, we note that our standard of review is governed by the determination of whether or not the objections were in fact timely. However, in this case, we would reach the same Conclusion under either standard. Therefore, we assume, without deciding, that the objections were timely, and that they properly preserved the issue for appeal under an abuse of discretion standard.

[28] Of the two defense objections, the first was a hearsay objection; the second appears to be based on a lack of foundation. In the first instance, the witness initially claimed that Mills had not made a certain statement directly to him. *fn5 Immediately after the court overruled Mills' hearsay objection, the government referred the witness to his earlier grand jury testimony. R. Vol. VIII at 431-32. According to the transcript of the grand jury proceedings, the witness had previously testified that Mills had told him the video made him look like he was bouncing on a trampoline. In response to the grand jury transcript, the witness admitted that he had told the truth in his grand jury testimony, and that his memory of the relevant conversations was probably better at the time of the earlier testimony. Id. at 433-34. Moreover, in subsequent redirect, defense counsel incorporated Mills' statement to the witness, again casting it as a direct rather than a hearsay statement. Id. at 457. Accordingly, as both the witness and defense counsel conceded that Mills made the statement directly to the witness, we find no error in the court's admitting it over Mills' hearsay objection.