UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

No. 96-4951

TREVOR M. HENRY, a/k/a Ivory

Hardy,

Defendant-Appellant.

Appeal from the United States District Court

for the Southern District of West Virginia, at Huntington.

Joseph Robert Goodwin, District Judge.

(CR-95-183)

Argued: March 6, 1998

Decided: June 19, 1998

Before WIDENER and WILKINS, Circuit Judges, and

MOON, United States District Judge for the

Western District of Virginia,

sitting by designation.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

ARGUED: Jane Moran, Williamson, West Virginia, for Appellant.

Miller Allison Bushong, III, Assistant United States Attorney,

Charleston, West Virginia, for Appellee. ON BRIEF: Rebecca A.

Betts, United States Attorney, Charleston, West Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit. See

Local Rule 36(c).

_________________________________________________________________

OPINION

PER CURIAM:

Trevor M. Henry ("Henry") seeks reversal of his convictions of

conspiracy to possess cocaine base with intent to distribute in violation of 21 U.S.C. §§ 841(a)(1) and 846 and aiding and abetting possession with intent to distribute cocaine base in violation of 18 U.S.C.

§ 2 and 21 U.S.C. § 841(a)(1). He raises five issues on appeal:

(1) whether the district court properly found him competent to stand

trial, (2) whether the district court properly denied his motion to suppress evidence, (3) whether the district court properly admitted testimony regarding his foreign accent, (4) whether the United States

committed prosecutorial misconduct, and (5) whether the district

court properly denied his motion for judgment of acquittal. Finding

no reversible error, we affirm.

I.

On March 17, 1995, at 9:55 p.m. and 10:23 p.m., informant John

Addison ("Addison") made two controlled buys of cocaine base from

an apartment at 1703 Rear Tenth Avenue in Huntington, West Virginia. Each time Addison knocked on the door of the apartment, and

someone inside uncovered a slot in the door and said only, "Money."

Each time Addison passed a marked fifty dollar bill through the slot.

Then a spoon containing crack cocaine was extended to him through

the slot.

About an hour after the second buy, the police officers supervising

Addison's buys applied for a search warrant. They had not been able

to see the numerical address of the building because of poor lighting.

Instead, they consulted a street directory and concluded incorrectly

that the address was 1701 Rear Tenth Avenue. Officer Robert Martin

typed a statement on a form he titled "Affidavit for Search Warrant."

He did not sign the affidavit, but beneath his statement he typed his

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name, "Huntington P.D.," and the date. Officer Hall filled out the

search warrant form. The magistrate read Officer Martin's unsigned

affidavit, administered the oath to him, and then issued the search

warrant, signing the form filled out by Officer Hall. J.A. at 31-32,

49-53.

At about 1:10 a.m., the officers returned to the apartment where the

drugs had been purchased. They knocked several times and

announced they were police with a search warrant. They heard "running feet" and a commotion in the apartment, but no one answered the

door. They broke down the door. They observed water running full

force in the bathroom. They continued to hear persons running on the

floor below them and also heard the sound of breaking glass. The

police apprehended three suspects, including Henry. On the ground

outside the apartment building, and amid broken glass from a

smashed window, the police found $970, including the marked bills

from the earlier controlled buys. Henry had $384 on his person. Additionally, the police found several rocks of crack cocaine on a glass

plate with a spoon. Henry's fingerprints were on the plate.

More than a month after Henry's arrest, on May 26, Corporal Rick

Eplin ("Eplin") took a second set of fingerprints from Henry at the

police station. He asked Henry where he was born, and Henry

answered that he had been born in Jamaica. Although Henry had previously been given a Miranda warning, the district court suppressed

the statement because Eplin had not given Henry a new Miranda

warning before questioning him. However, at trial the court allowed

Eplin to testify that he had heard Henry's accent while taking his fingerprints and recognized it as Jamaican. Eplin testified that he was

familiar with a Jamaican accent because one of his neighbors who is

Jamaican speaks with the same accent.

Addison testified that the word "money" had been spoken to him

with a Jamaican accent. On the night of the controlled buys, however,

Addison told Officer Martin that the person who passed the cocaine

to him "had like a Nigerian accent, some kind of accent." J.A. at 47.

II.

Henry argues that he was not competent to stand trial because of

his inability to communicate with counsel or the court regarding his

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case. The test of mental competency is "whether[a defendant] has

sufficient present ability to consult with his lawyer with a reasonable

degree of rational understanding-and whether he has a rational as well

as factual understanding of the proceedings against him." Dusky v.

United States, 362 U.S. 402, 402 (1960) (citation omitted). The district court found that Henry was competent to stand trial. Whether a

defendant is competent to stand trial is left to the sound discretion of

the trial court, and its determination will not be set aside on appeal

unless clearly "arbitrary or unwarranted." Hall v. United States, 410

F.2d 653, 658 (4th Cir.), cert. denied, 396 U.S. 970 (1969).

Dr. Robert B. Alexander ("Dr. Alexander") who treated and evaluated Henry, reported to the district court that:

Mr. Henry is not suffering from a mental disease or defect.

He does understand the roles of judge, jury, prosecutor, and

defense attorney. He also understands the concept of the

plea bargain. He has only average intelligence, but a good

memory and has shown competency in the area of legal

research and in providing explanations for damaging evidence. He has as much working knowledge as an average

citizen. He is willing to assist his attorney, and has formed

a fairly good working relationship. Although there are certainly disagreements, and a stubbornness as demonstrated by

his focus on a defense not seen as viable by his attorney, this

is within the normal limits. These observations led the

undersigned to form the opinion that Mr. Henry is legally

competent to assist in his defense.

J.A. at 100.

Dr. Alexander's statement acknowledges the working difficulties

of Henry and his attorney. These difficulties do not undermine the

doctor's opinion that Henry was competent to assist in his defense.

The Dusky standard does not require that a defendant approve of the

tactical methods of his counsel, but that a defendant have a rational

understanding in consulting with his attorney and a rational as well

as factual understanding of the proceedings against him. See Dusky,

362 U.S. at 402. The record does not show that the trial court abused

its discretion in finding that Henry was competent to stand trial.

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III.

Henry asserts that the district court erred in refusing to suppress

evidence seized under the allegedly invalid search warrant. He contends that the search warrant is invalid because the officers did not

have probable cause, the warrant application contained inaccuracies,

the officer did not sign the affidavit he swore to, and the magistrate

was not detached and neutral. We review the district court's factual

findings underlying its legal conclusions for clear error and its legal

conclusions de novo. United States v. Rusher, 966 F.2d 868, 873 (4th

Cir.), cert. denied, 506 U.S. 926 (1992).

A.

The Fourth Amendment to the Constitution requires that "no Warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the

persons or thing to be seized." U.S. Const. amend. IV. A search warrant must be issued by a neutral and detached magistrate. United

States v. Clyburn, 24 F.3d 613, 616 (4th Cir.), cert. denied, 513 U.S.

907 (1994).

B.

The affidavit stated that Addison twice bought drugs in controlled

buys at the apartment. Officer Martin applied for a warrant within an

hour of the second buy. J.A. at 48. Officer Martin's statement marked

"Affidavit for Search Warrant" describing the information received

from a credible confidential informant regarding drug activity at the

apartment and two controlled drug buys at the apartment which had

yielded a substance that had tested positive for crack cocaine,

affirmed under oath about an hour after the buys, provided probable

cause for the magistrate to believe that drugs were still on the premises at the time she issued the warrant. See United States v. Leon, 468

U.S. 897, 913-15 (1984).

C.

Henry argues that the magistrate served only as a"rubber stamp,"

but he fails to offer any evidence that the magistrate was not neutral

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and detached. The evidence is to the contrary. The magistrate first

read the affidavit provided by Officer Martin as he personally stood

before her. She had him swear to his typed statements, and only then

did she issue the search warrant which had been filled out by Officer

Hall, one of Martin's companion officers. J.A. at 49.

D.

Henry argues that the warrant was invalid because the officers cited

the wrong address in their warrant application. Although the street

number was not accurate, the description of the house in the search

warrant was sufficient to direct the officers to the correct house, the

one at which Addison had made the drug purchases. The particularity

requirement of the Fourth Amendment tests whether"the officer with

a search warrant can with reasonable effort ascertain and identify the

place intended." Steele v. United States, 267 U.S. 498, 503 (1925)

(citations omitted). "An erroneous description in the warrant, however, does not necessarily invalidate a warrant and subsequent

search." United States v. Owens, 848 F.2d 462, 463 (4th Cir. 1988).

The scope of a lawful search is "defined by the object of the search

and the places in which there is probable cause to believe it may be

found." United States v. Ross, 456 U.S. 798, 824 (1982). Limitations

on the execution of search warrants should be examined in light of

"the need to allow some latitude for honest mistakes that are made by

officers in [this] dangerous and difficult process." Maryland v.

Garrison, 480 U.S. 79, 87 (1987). Moreover,"when an officer acts

in good faith reliance on a facially valid warrant, the purpose of the

exclusionary rule would not be furthered by suppression of relevant

and probative evidence." Owens, 848 F.2d at 464 (discussing United

States v. Leon, 468 U.S. 497 (1984)). No Fourth Amendment violation occurred because the description was set out with sufficient particularity to identify the premises to the officers: it targeted the

specific apartment the searching officers identified as the one from

which drugs had been sold, and the officers indeed searched the premises for which probable cause existed. The officers acted in good faith

and did not realize during the course of executing the warrant that

they had misstated the apartment number in applying for the warrant.1

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1 Henry does not allege, and it does not appear from the record, that the

officers realized their mistake while executing the warrant. See Appellant's Brief at 31-34; J.A. at 258-306.

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E.

Henry also argues that the affidavit was not proper because it was

not signed, citing the Federal Rules of Criminal Procedure and West

Virginia Rules of Criminal Procedure. Even if these rules required a

signed affidavit, they would not control in this case. Here, a local

police officer, not federal agents, asked for the warrant. The evidence

was being offered in a federal proceeding. Therefore, neither the warrant limiting strictures of the Federal Rules of Criminal Procedure nor

the West Virginia Rules of Criminal Procedure apply. Clyburn, 24

F.3d at 616. Instead, the limits set forth by the Fourth Amendment

safeguard the defendant's rights. Id. The Warrant Clause does not

require a signed and sworn affidavit, but only that probable cause be

supported by oath or affirmation. Clyburn, 24 F.3d at 617. Because

the officer swore to the information in the presence of the magistrate,

the warrant is valid.

IV.

The district court admitted Eplin's testimony regarding Henry's

accent, which Eplin heard when he took Henry's fingerprints. Henry

claims this testimony unconstitutionally prejudiced him and should

have been suppressed. "The sound of a defendant's voice, even if

heard during privileged communications, is not itself testimonial, and

therefore is not protected by the Fifth Amendment privilege against

self-incrimination." United States v. Oriakhi , 57 F.3d 1290, 1299 (4th

Cir. 1995) (citing United States v. Dionisio, 410 U.S. 1, 8 (1973); Doe

v. United States, 487 U.S. 201, 210 (1988)). The sound of Henry's

voice and his accent are physical evidence and are not shielded by the

Fifth Amendment privilege against self-incrimination. See

Pennsylvania v. Muniz, 496 U.S. 582 (1990). 2

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2 In passing, Henry contends that his Sixth Amendment right to counsel

in an interrogational setting was violated by Eplin's actions. Appellant's

Br. at 38. Henry does not appear to have offered this argument for the

district court's consideration. In any case, the contention is meritless.

The Sixth Amendment right to counsel is intended to protect the layman

at critical confrontations with the government after the initiation of the

adversary process with respect to a particular crime. United States v.

Gouveia, 467 U.S. 180, 189 (1984). Corporal Eplin's identification of

Henry's accent during fingerprinting was not a critical stage of the proceedings. Oriakhi, 57 F.3d at 1299.

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Henry also contends that because Eplin was not a linguist, the trial

court erred in admitting his opinion regarding the origin of Henry's

accent. Lay witnesses' opinions must be rationally based on the witnesses' perception and helpful to the determination of a fact in issue.

Fed. R. Evid. 701. A trial court's admission of evidence is a matter

of discretion and should be affirmed absent a clear abuse of discretion. United States v. Webster, 639 F.2d 174 (4th Cir.), cert. denied,

454 U.S. 857 (1981). Eplin explained the basis for his opinion that the

accent was Jamaican--he had a Jamaican neighbor. This provided a

rational basis for his testimony which was helpful to the fact finder

in determining if the person who passed the drugs was Jamaican.

Thus, the trial court did not abuse its discretion.

V.

Henry's allegation of prosecutorial misconduct is based on the

prosecutor's introduction of testimony that the police attempted to

record the controlled buys. Henry's counsel objected when the Assistant U.S. Attorney directed his witness toward discussion of the

attempt to tape the buys. During a sidebar conference, the Assistant

U.S. Attorney and Henry's attorney came to an agreement that it was

permissible for the Assistant U.S. Attorney to introduce testimony

that an unsuccessful attempt was made to tape the drug buys.

The Assistant U.S. Attorney kept his witness's testimony within

the framework of this agreement and Henry's attorney did not further

object. J.A. at 253-60. The test for reversible prosecutorial misconduct requires the prosecutor's conduct to have been improper and

such conduct must have prejudicially affected defendant's substantial

rights so as to deprive defendant of a fair trial. United States v.

Francisco, 35 F.3d 116, 120 (4th Cir. 1994). The record does not support the claim that the Assistant U.S. Attorney was guilty of misconduct.

VI.

In considering Henry's motion for judgment of acquittal after a

jury verdict of guilty, we are required to view the evidence in the light

most favorable to the government to see whether any rational trier of

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fact could have found the defendant guilty beyond a reasonable doubt.

Jackson v. Virginia, 443 U.S. 307, 319 (1979).

Construing the evidence in the light most favorable to the government, Addison made two controlled buys at the residence in which

Henry and two others were arrested within three hours. The person

who sold the drugs to Addison had a Jamaican accent. Of the three

individuals the police found in the apartment, only one, Henry, had

a Jamaican accent. The prior statement by Addison that the accent

was Nigerian went to Addison's credibility, which was for the fact

finder to resolve. Henry attempted to flee along with the others when

the police arrived. Flight from the scene of a crime may indicate consciousness of guilt, which is evidence of illegal conduct. See, e.g.,

United States v. Ellis, 121 F.3d 908, 926 (4th Cir. 1997), cert. denied,

118 S.Ct. 738 (1998). When arrested, Henry had $384 on his person.

Henry's fingerprints were found on the glass plate with several grams

of crack cocaine. All of these circumstances were sufficient for a

rational fact finder to believe beyond a reasonable doubt that Henry

conspired to distribute and possess with intent to distribute cocaine

base and aided and abetted the possession with intent to distribute

cocaine base. The district court properly denied the motion for acquittal.

Finding no reversible error, we affirm.

AFFIRMED

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