Appeal from the United States District Court for the Northern District of Alabama. D.C. Docket No. 5:12-cr-00286-SLB-RRA-1.
For United States of America, Plaintiff - Appellee: Ramona Albin, Michael B. Billingsley, Eric W. Hunter, Joseph Paul Montminy, Joyce White Vance, U.S. Attorney's Office, Birmingham, AL.
For Jerry Thomas Davis, Defendant - Appellant: Melanie S. Keiper, Rick Burgess, Kevin L. Butler, Allison Case, James Tobia Gibson, Federal Public Defender, Birmingham, AL.
Before MARTIN, Circuit Judge, and RESTANI,[*] Judge, and HINKLE,[**] District Judge. MARTIN, Circuit Judge, concurring.
This criminal case presents three issues. First, does Federal Rule of Evidence 610, which excludes evidence of a witness's " religious beliefs or opinions . . . to attack or support the witness's credibility," bar evidence tat a witness's job is city and police-department chaplain, even when neither side argues that this affects credibility? Second, must a court give a special jury instruction on the credibility of a law enforcement officer and the defendant's right to attack an officer's credibility? Third, may a court that has already given one modified Allen charge tell a deadlocked jury to keep deliberating--with a reasonable suggestion for how to do it--while also telling the jurors they will be released if they are unable to agree within a short additional period of deliberations? We resolve all three issues for the government and affirm the defendant's conviction.
A jury convicted the defendant Jerry Thomas Davis of possessing an unregistered short-barreled shotgun in violation of 26 U.S.C. § 5861(d). He now appeals.
The background is this. Hanceville is a small city in Alabama. Its police department received a 911 report that Mr. Davis pointed a sawed-off shotgun at another person. The report gave a residential address.
Officers Anthony Childress and Jady Pipes separately traveled to the address. They were on the lookout for a red Pontiac Grand Am. Mr. Pipes saw a red Grand Am drive down the street but turn around in a driveway just before reaching the address at issue. Mr. Pipes saw the driver of the Grand Am throw something out the driver's window, over the car, into a yard. The Grand Am sped away, running stop signs. Mr. Pipes gave chase with lights and sirens activated. He eventually succeeded in stopping the Grand Am about a mile away. Mr. Davis was the Grand Am's driver and sole occupant.
When Mr. Childress arrived and went forward with the arrest, Mr. Pipes returned
to the yard to look for the object thrown from the Grand Am. He eventually found the short-barreled shotgun that led to Mr. Davis's conviction.
Mr. Pipes was a sworn officer who routinely performed some of the same duties as other Hanceville officers. But Mr. Pipes held the position of " chaplain," not only with the police department but also with the city itself. Before trial, Mr. Davis moved to exclude testimony that Mr. Pipes was the " chaplain," to bar the government from referring to Mr. Pipes as " chaplain," and to prevent Mr. Pipes from appearing with these parts of his official uniform: a large, plainly visible cross on his hat and much smaller crosses on his badge and lapel.
Mr. Davis based his motion on Rule 610. Mr. Davis did not challenge the city's decision to have a chaplain who wears a cross while serving as a law enforcement officer, and the issue is not before us.
The court ruled that Mr. Pipes could testify to his title and that the government could refer to him that way. The court ruled that Mr. Pipes could not wear the large cross but could wear the other crosses, which were too small to be seen or recognized from the jury box.
The trial proceeded accordingly. Mr. Pipes was the government's first and most important witness. He was the only person who saw an object thrown from the car, so the case turned largely on his credibility.
On appeal, Mr. Davis asserts that allowing evidence that Mr. Pipes was a " chaplain" --and allowing the government to refer to him that way--violated Rule 610. Mr. Davis has abandoned any complaint about the crosses.
The government says Mr. Davis waived the " chaplain" objection by failing to assert the objection contemporaneously during the trial. That is plainly wrong. Since 2000, Federal Rule of Evidence 103(b) has provided: " Once the court rules definitively on the record--either before or at trial--a party need not renew an objection or offer of proof to preserve a claim of error for appeal." The government's reliance on older cases--cases of the kind that prompted the 2000 amendment--is misplaced.
Mr. Davis properly presented the " chaplain" issue in advance. The court ruled definitively on the issue. Mr. Davis's objection is fully preserved. See, e.g., Tampa Bay Water v. HDR Eng'g, Inc., 731 F.3d 1171, 1178 (11th Cir. 2013) (" However, under the Federal Rules of Evidence, it is no longer necessary for a party to renew an objection to evidence when the district court has definitively ruled on the party's motion in limine." ); Proctor v. Fluor Enters., Inc., 494 F.3d 1337, 1349-50 (11th Cir. 2007).
Rule 610 is entitled " Religious Beliefs or Opinions." The rule provides in full: " Evidence of a witness's religious beliefs or opinions is not admissible to attack or support the witness's credibility."
By its terms, the rule excludes evidence only when two conditions are both satisfied. First, the evidence must be evidence of a witness's " religious beliefs or opinions." Second, the evidence must be offered " to attack or support the witness's credibility." Evidence of religious ...