# United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued November 12, 2004 Decided December 7, 2004

No. 03-3077

U NITED S TATES OF A MERICA

, A PPELLEE

v.

S ERITA L. M ORTON

, A PPELLANT

Appeal from the United States District Court

for the District of Columbia

(No. 01cr00337-01)

Douglas Wham , appointed by the court, argued the cause

and filed the briefs for appellant.

Susan A. Nellor

, Assistant U.S. Attorney, argued the

cause for appellee. With her on the brief were K e nneth L.

Wai nstein , U.S. Attorney, and J ohn R. Fisher and Roy W.

McLeese, III

, Assistant U.S. Attorneys.

Before: G

INSBURG

, Chief J

udge , and T

A TEL and

R OBERTS

, Circuit Judges

.

G INSBURG

, Chief Judge :

Serita Morton appeals her

c onviction for possession of a firearm by a convicted felon , in2

violation of 18 U.S.C. § 922(g)(1). Morton argues the district

court e rroneously denied her motion to suppress a police

officer’s testimony about incriminating statements Morton made

after being

arrested. Morton also claims the district court

improperly permitted another police of ficer to give opinion

testimony at trial. Neither argument has merit.

I. Morton’s Incriminating Statements

The following facts are not disputed. Around 2:00 a.m.

on July 13, 2001, Officers Brian Hays and Christopher Beyer of

the Metropolitan Police Department pull ed a vehicle over for

running a stop sign. Morton, the driver, did not have a valid

driver’s license . After the officers ordered Morton and the

passenger out of the vehicle, Officer Beyer noticed th e tip of a

gun underneath the cushion on which Morton had been sitting.

Officer Hays then arres ted Morton and called Officer Marvin

Parker to transport her to th e police station. The officers

questioned the passenger but did not place him under arrest.

On the way to the station, Morton expre ssed concern

over what would happen to her vehicle. Officer Parker said her

vehicle would be impounded. Morton then became upset. She

told Officer Parker she would be released in the morning.

Officer Parker responded that she had been arrested for a serious

charge and tha t “she might not be getting out as quickly as she

thinks.” Morton told Officer Parker that her lawyer would help

her “beat the charge,” and when she did get out, “she would be

back do wn in the same area riding around with another gun” that

she kept at home. Morton also stated she did not like the police,

and “that’s why police officers get killed.”

Morto n moved to suppress Officer Parker’s testimony

about her statements on the ground they were coerced. The

district court denied the motion, and Officer Parker testified3

against Morton at her trial, recalling the conversation for the

jury. Morton now appeals the district court’s ruling.

The Governme nt admits Morton was in custody when

she made the incrimina ting statements and that no officer had

informed Morton of her rights under M iranda v. Arizona

, 384

U.S. 436, 474 (1966). Morton does not dispute that she initiated

the conversation with Officer Parker and concedes that Officer

Park e r did not ask her any questions. Morton nevertheless

contends Officer Parker’s conduct was “functionally equivalent”

to interrogation because Officer Parker should have known that

his comme n ts were “reasonably likely to elicit an incriminating

response” from Morton. R hode Island v. Innis

, 446 U.S. 2 91,

301 ( 1980). The Government argues Officer Parker’s testimony

was admissible because Morton init iated the conversation and

her incriminating remarks were spontaneous and voluntary. S ee

United States v. Samuels , 938 F.2d 210, 214 (D.C. Cir. 1991).

“‘Interrogation,’ as conceptualized in the M iranda

opinion, requires a measure of compulsion above and beyond

that inherent in custody itself.” I nnis

, 446 U.S. at 300. Here, as

the Government maintains, Officer Parker di d not “compel” or

even encourage Morton

to incriminate herself. Officer Parker’s

statements

-- that Morton’s vehicle would be imp o unded and

that she had been arrested on a serious charge and might not be

released as quickly as she thought

-- were directly responsive to

what Morton had sai

d and were not reasonably likely to elicit an

incriminating response. Morton, therefore, was not under

interrogation, s ee Uni t ed States v. Bogle

, 114 F.3d 1271, 1275

(D.C. Cir. 1997), and the district court properly denied her

motion to suppress.4

II. Officer Beyer’s “Opinion” Testimony

At trial, Morton’s stra

t egy was to suggest the gun

belonged to her passenger. The prosecuting attorney asked

Officer Beyer why the passenger had not been a rrested, and

Officer Beyer responded:

Based on the position of the gun bein g under Ms.

Morton’s right thigh, being on her side of the

consol e, which as I stated was pretty high and

also used as an arm rest, to us we believe that the

passenger did not have knowledge and would not

have been able to see the gun sitting there.

Morton argues the district court e rred in permitting Officer

Beyer to opine whether the passenger knew about the gun under

Morton’s seat cushion and whether t he passenger could have

seen the gun, testimony which “dir ectly undermined” her

defense. According to Morton, the Government “failed to lay an

adequa t e foundation, or indeed any foundation at all, for Officer

Beyer’s opinion testimony.”

M o rton’s trial counsel did not object to that portion of

Beyer’s testimo ny. Therefore, as both parties correctly observe,

in order for Morton to s ucceed on appeal she must demonstrate

that the trial court committ e d a plain error that affected her

substantial rights. Fed. R. Crim. P. 52(b); see also United States

v. Olano , 507 U.S. 725, 732 (1993). Where, as here, an

appellant failed to raise a contemporaneou s objection at trial, a

reviewing court may correct “only particularly egregious errors,

those errors that seri

ously affect the fairness, integrity, or public

reputation of judicial proceedings.” United States v. Young

, 470

U.S. 1, 15 (1985) (internal quotation marks and citations

omitted). Morton cannot make the requisite showing.5

First, as the Government argues, the admission of Officer

Beyer’s challenged statement is not plainly erroneous because

it is not apparent that Beyer actually offered opinion testimony.

Although Beyer testified that he believed the passenger did not

know the gun was in the vehicle, that testimony was not offered

to prove what the passenger actu ally knew; rather, the officer

was simply describing his reason for not having arrested the

passenger. A witness’s testimony about his own state of mind

is not opinion te stimony. S ee United States v. Giovanetti

, 919

F.2d 1223, 1226 (7th Cir. 1990) (“W hat [the witness] called his

‘opinion’ was actually a report of the contents of hi s mind, of

which people are normally assumed ... to have direct rather than

inferential knowledge”).

Second, we note that Morton’s failure to obj ect to

Officer Beyer’s testimony for lack of fou ndation deprived the

Government of any opportunity to lay a proper foundation. S ee

Bartleson v. United States , 96 F.3d 1270, 1278 (9th Cir. 1996).

M orton does not argue the Government would have been unable

to lay a proper foundation if it had been called upon to do so.

Under these circumstance s, the district court did not plainly err

in failing to strike Officer Beyer’s testimony sua sponte

.

Finally, the Governm

ent maintains that even if the error

was plain, Morton cannot show prejudice. We agree. There was ample evidence to support th e jury’s determination that Morton

possessed the f

i rearm without the portion of Officer Beyer’s

testimony that Mor

ton now challenges. In addition to her own

incriminating statemen

ts, there was evidence that Morton owned

the vehicle in which the gun was found and, most important, the

gun was found under her thig h. In light of the evidence against

her, Morton cannot show the outcome of the trial would likely

have been different if the trial co urt had corrected the purported

error. S ee United States v. Sumlin

, 271 F.3d 274, 281 (D.C. Cir.

2001).6

III. Conclusion

We agree with the distric t court that Officer Parker did

not interrogate Morton o r coerce her into making any

incriminating

statement. We also hold that Morton’s challenge

to Offic er Beyer’s testimony does not survive plain error review.

Therefore the judgment of the district court is

Affirmed

.