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Unlted States of America v. James E. Pearson and Samuel J. Simmons, 798 F.2d 385, 10th Cir. (1986)
Unlted States of America v. James E. Pearson and Samuel J. Simmons, 798 F.2d 385, 10th Cir. (1986)
2d 385
David A. Kern, Asst. U.S. Atty. (Richard A. Stacy, U.S. Atty., with him on
brief), Cheyenne, Wyo., for United States.
Before BARRETT and MOORE, Circuit Judges, and THEIS, * District Judge.
On appeal, Pearson claims: (1) that there was insufficient evidence to convict
him; (2) that the trial court denied him a fair trial by improperly commenting
on the witnesses and the evidence; and (3) that the court prejudicially limited
his right to cross-examine certain witnesses. Simmons contends: (1) that he was
denied effective assistance of counsel; (2) that the verdict was contrary to the
evidence; and (3) that the trial court should have instructed on the lesser
Another controlled purchase was arranged for June 1, 1984. Westling was
given two thousand four hundred dollars in pre-recorded currency, a wire was
placed in her purse and her car and purse were searched before the meeting.
Again Pearson met Westling at her residence. Westling asked if she could
accompany Pearson to pick up the cocaine. Pearson replied that she could ride
with him but could not go into the house, even though "Sam" knew the drugs
were for her. Pearson and Westling drove to Simmons' house. Pearson entered
the house, came out twenty minutes later and gave Westling some cocaine.
Pearson and Westling returned to Westling's house where Pearson was arrested.
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Later in the investigation, the police were contacted by a nine year old girl,
Anna Schilling, and her mother, Donna Schilling, who said that Anna had
watched a man fitting the description of Lynn Worthinc, a person who had
come out of Simmons' house immediately before Pearson emerged on April 24,
1984, place some green currency under a car. Both Anna and her mother next
saw three girls walk by the car, find the money and run off. Both testified that
Pearson and Simmons had visited them at their home several times after the
incident looking for the money, and told them the money was marked and that
they had to find it or else they would go to prison. None of the marked money
was ever recovered.
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First, Pearson challenges the sufficiency of the evidence used to convict him.
Pearson points to contradictions in the testimony of the police officers with
respect to such things as whether Pearson entered Simmons' house or just stood
in the doorway, the positioning of Pearson's parked car, and whether guns were
drawn at the time of arrest. In addition, Pearson notes discrepancies in Anna
Schilling's testimony. Finally, Pearson argues that no one saw an exchange of
drugs and money between Pearson and anyone else, that Westling had a motive
for perjury, and that the case was proved by circumstantial evidence.
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Next, Pearson claims that the comments of the trial judge denied him a fair
trial. As one example of allegedly prejudicial comments by the trial judge,
Pearson cites the following colloquy between court and counsel:
(Tr. Vol. II, p. 231.) In this instance, the Court simply asked a question to
clarify the situation. A trial court has the broad discretion "to comment
reasonably upon the evidence, being careful not to become an advocate for any
of the parties." United States v. Baker, 638 F.2d 198, 203 (10th Cir.1980). This
Court has reviewed the entire record and finds that the few interjections the
trial court did have were made in a moderate and dispassionate manner.
Furthermore, this Court notes that none of the statements about which Pearson
now complains were objected to at trial. Therefore, this Court could only
reverse the trial court if the statements constituted plain error. United States v.
Monaco, 700 F.2d 577, 581 (10th Cir.1983). The Court is not persuaded that
the sparse and temperate comments of the trial court amounted to plain error.
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Finally, Pearson alleges that the trial court improperly limited his right to crossexamine the government's forensics expert. The court allowed extensive
questioning of the witness concerning the methodology he employed in
determining the substance at issue was cocaine. Only when counsel asked
precisely how the printer of the infrared spectrometer worked did the court
limit the cross-examination. The court has broad discretion to limit the crossexamination of an expert witness, and this Court will not reverse unless an
abuse of discretion is shown. United States v. Valentine, 706 F.2d 282, 288
(10th Cir.1983). In this case, the trial court's restraint of cross-examination
regarding extraneous matters was a proper exercise of discretion.
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Palma, 645 F.2d 844, 846 (10th Cir.), cert. denied, 454 U.S. 861, 869, 102 S.Ct.
316, 335, 70 L.Ed.2d 159, 172 (1981). In this case, the late appointment of
counsel resulted from Simmons' own failure to secure counsel, contrary to his
earlier representations to the court.
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Simmons' last argument is that the trial court erred in denying his proposed
instruction on the lesser included offense of simple possession. This Court
recently held that possession of cocaine is not a lesser included offense of
conspiracy to distribute cocaine. United States v. Swingler, 758 F.2d 477, 499
(10th Cir.1985). Moreover, there was a dearth of evidence to establish that
Simmons was guilty of simple possession rather than conspiracy to distribute;
therefore, such an instruction would not have been proper. Beck v. Alabama,
447 U.S. 625, 635, 100 S.Ct. 2382, 2388, 65 L.Ed.2d 392 (1980).
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Honorable Frank G. Theis, United States District Judge for the District of
Kansas, sitting by designation