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United States v. Clay

United States Court of Appeals, Eighth Circuit

March 5, 2018

United States of America Plaintiff- Appellee
v.
Cahlan A. Clay Defendant-Appellant

          Submitted: November 17, 2017

         Appeal from United States District Court for the Western District of Missouri - Kansas City

          Before COLLOTON and GRUENDER, Circuit Judges, and READE, [1] District Judge.

          PER CURIAM.

          A jury convicted Cahlan Clay of one count of unlawful possession of a firearm as a previously convicted felon, in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2). Clay appeals his conviction, arguing that the district court[2] violated his Fifth and Sixth Amendment right to present testimony in his defense and his Sixth Amendment right to confront witnesses against him. We affirm.

         I.

         On September 23, 2012, Detective Anderson and Officer Thomas of the Kansas City, Missouri Police Department were working off-duty at a wedding reception in Kansas City. Around 2:45 a.m., Detective Anderson heard a "pop, " which he believed was a gunshot. This was followed by one or two more "pops, " which he knew were gunshots. The sounds originated from a large crowd gathered in a nearby parking lot. The crowd scattered, and Detective Anderson and Officer Thomas moved toward the parking lot.

         Detective Anderson testified that, upon entering the parking lot, he saw Clay holding a handgun. Detective Anderson saw the muzzle flash of Clay's handgun as Clay fired at him. Clay fled after Detective Anderson returned fire. Detective Anderson maintained focus on Clay and pursued him. While in pursuit, Detective Anderson fired multiple times at Clay. One of his shots hit Clay, who fell to the ground. As Detective Anderson approached, Clay surrendered his handgun by dropping it and said, "I'm done." The entire incident lasted approximately thirty seconds to a minute.

         The State of Missouri charged Clay with four felonies arising out of the incident. On April 21, 2015, Clay's state court trial began in Jackson County, Missouri. Detective Anderson and Officer Thomas testified at the state trial. The trial ended in a mistrial after the jury was unable to reach a unanimous verdict.

         On July 28, 2015, a federal grand jury charged Clay with one count of unlawful possession of a firearm as a previously convicted felon. On March 22, 2016, Clay's first federal trial began. During the trial, Detective Anderson testified that he heard one "pop" followed by two more "pops" before he approached the parking lot and encountered Clay. During cross-examination, Officer Thomas testified that he never saw the face of the person holding the gun in the parking lot, but saw that the shooter was wearing a white t-shirt. Officer Thomas stated that his identification was based on Clay's clothing.

         During closing argument, defense counsel argued that the officers' testimony was contradicted by the trial evidence in two ways. First, Detective Anderson testified that he had heard three gunshots prior to approaching the parking lot, where Clay fired a fourth shot. This testimony was contradicted by the fact that only three shell casings matching the handgun were recovered. Second, Officer Thomas testified that the shooter was wearing a white t-shirt, but the evidence established that Clay was wearing a black t-shirt over a white t-shirt. Detective Anderson and Officer Thomas observed closing arguments from the gallery. On March 24, 2016, the district court declared a mistrial after the jury was unable to reach a unanimous verdict.

         On May 9, 2016, Clay's second federal trial began. Both officers testified at the second trial. Detective Anderson's testimony was similar to his testimony at the first trial, except he testified that he heard two shots, rather than three, prior to entering the parking lot. Specifically, Detective Anderson testified that he heard a "pop" that sounded like a gunshot, followed by a second "pop" that he was certain was a gunshot. Detective Anderson also testified, however, that he was not counting shots and that he was unsure of the total number of shots fired. Officer Thomas's testimony was also substantially similar to the first trial, except that, on cross-examination, he described the shooter as wearing a black t-shirt over a white t-shirt.

         Based on the officers' testimony, defense counsel sought to elicit testimony, through either cross-examination or defense witnesses, that the officers had been present for closing arguments at the first trial. Defense counsel contended that this evidence supported the argument that the officers changed their testimony to conform to the physical evidence after seeing how defense counsel attacked their testimony in the first trial. The district court found that Detective Anderson and Officer Thomas had "committed [their] statements on the record multiple times" before the current trial, including statements given after the incident, during depositions and trial in state court and at the first federal trial. The district court determined that defense counsel had ample opportunity to impeach the officers without referencing the first federal trial and concluded that the proffered evidence was "more confusing than helpful." Defense counsel was allowed to impeach the officers with their prior testimony by referring to the first federal trial as a "hearing."

         During cross-examination, defense counsel also sought to question Detective Anderson regarding the consequences he could face for an unjustified shooting. The prosecution objected that the testimony was speculative. Defense counsel argued that this evidence established that Detective Anderson had a motive to say that Clay had a gun, even if he did not, to avoid punishment. The district court sustained the objection, finding that the record was sufficient to allow defense counsel to ...


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