United States v. Hayes

* Pursuant to 5TH CIR. R. 47.5, the court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
United States Court of Appeals
Fifth Circuit
F I L E D
December 22, 2004
Charles R. Fulbruge III
Clerk
UNITED STATES COURT OF APPEALS
FIFTH CIRCUIT
No. 03-11335
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ZAVARN CORNELIUS HAYES,
Defendant-Appellant.
Appeal from the United States District Court
for the Northern District of Texas
(3:03-CR-109-ALL)
Before JONES, BARKSDALE, and PRADO, Circuit Judges.
PER CURIAM:*
Zavarn Cornelius Hayes appeals his conviction for being a
previously convicted felon in possession of a firearm, in violation
of 18 U.S.C. §§ 922(g)(1) and 924(a)(2). Hayes contends that the
officers who arrested him testified improperly at trial that it was
their opinion and belief that the weapon found at the scene came
from his person. (Hayes had been apprehended after a pursuit; when
he was lifted to his feet, the officers had observed a holstered
pistol under Hayes’ body.) Because Hayes did not object to the

-- 1 of 4 --

2
prosecutor’s questions on the basis that they were intended to
induce improper opinion testimony, we review only for plain error.
See, e.g., United States v. Green, 324 F.3d 375, 381 (5th Cir.),
cert. denied, 124 S. Ct. 152 (2003).
“Under the plain error analysis, the court may reverse a
criminal conviction only if (1) there was error, and (2) the error
was clear and obvious, and (3) the error affected a substantial
right.” United States v. Jimenez, 256 F.3d 330, 340 (5th Cir.
2001). Further, the court retains discretion to reverse a
conviction on the basis of plain error; generally, we will reverse
only if the error seriously affected the fairness, integrity, or
public reputation of the proceedings. Id.
Under FED. R. EVID. 701, if a witness is not testifying as an
expert, the witness may testify in the form of opinions or
inferences only if the testimony (1) is rationally based on the
witness’ perceptions, (2) is helpful to a clear understanding of
the testimony or the determination of a fact issue, and (3) is not
based on scientific, technical, or other specialized knowledge.
See, e.g., United States v. Parsee, 178 F.3d 374, 379 (5th Cir.
1999). Although a witness may not offer legal conclusions,
“testimony in the form of an opinion or inference otherwise
admissible is not objectionable because it embraces an ultimate
issue to be decided by the trier of fact”. FED. R. EVID. 704(a);
see United States v. Izydore, 167 F.3d 213, 218 (5th Cir. 1999)

-- 2 of 4 --

3
(applying Rule 704(a) to lay testimony). The officers’ testimony
was limited to opinions that were rationally based on the officers’
observations, and the testimony was helpful to a clear
determination of a fact issue. There was no error. But even
assuming arguendo the admission of the officers’ testimony was
error, it was not the “clear” or “obvious” error required by our
plain error review. See Parsee, 178 F.3d at 379.
Hayes also challenges remarks made by the prosecutor during
closing argument. He contends that the prosecutor improperly
vouched for the officers’ credibility on several occasions;
however, he objected to only two of the four remarks he challenges
on appeal. Plain error review is applied to the comments for which
there was no objection. The objected-to comments are reviewed to
determine whether they were improper and, if so, affected Hayes’
substantial rights. E.g., United States v. Gallardo-Trapero, 185
F.3d 307, 320 (5th Cir. 1999).
Although Hayes stopped short of testifying that the arresting
officers were lying, his testimony about the discovery of the
firearm conflicted substantially with the officers’. A prosecutor
may “present what amounts to be a bolstering argument if it is
specifically in rebuttal to assertions made by defense counsel in
order to remove any stigma cast upon [the prosecutor] or his
witness”. United States v. Thomas, 12 F.3d 1350, 1367 (5th Cir.)
(internal quotation and citation omitted), cert. denied, 511 U.S.

-- 3 of 4 --

4
1095, and cert. denied, 511 U.S. 1114 (1994). The other comments
challenged by Hayes were permissible requests that the jury draw
reasonable inferences from the evidence and a permissible argument
that, under the evidence presented, the officers had no reason to
lie. See United States v. Washington, 44 F.3d 1271, 1278 (5th
Cir.), cert. denied, 514 U.S. 1132 (1995). There was no error,
plain or otherwise.
Hayes also claims for the first time on appeal that the
prosecutor also made an improper plea for law enforcement. “This
circuit has held that appeals to the jury to act as the conscience
of the community are permissible, so long as they are not intended
to inflame.” United States v. Fields, 72 F.3d 1200, 1208 (5th
Cir.), cert. denied, 519 U.S. 807 (1996). The prosecutor’s remark
was not clear or obvious error. See Jimenez, 256 F.3d at 340.
Finally, Hayes urges reversal based on cumulative error.
Obviously, in the light of the foregoing, that claim fails also.
AFFIRMED

-- 4 of 4 --