United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued November 12, 2004 Decided December 7, 2004

No. 03-3077

UNITED STATES OF AMERICA,

APPELLEE

v.

SERITA L. MORTON,

APPELLANT

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 Kenneth L.

Wainstein, U.S. Attorney, and John R. Fisher and Roy W.

McLeese, III, Assistant U.S. Attorneys.

Before: GINSBURG, Chief Judge, and TATEL and

ROBERTS, Circuit Judges.

GINSBURG, Chief Judge: Serita Morton appeals her

conviction for possession of a firearm by a convicted felon, in
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violation of 18 U.S.C. § 922(g)(1). Morton argues the district

court erroneously 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 officer 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 pulled 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 the tip of a

gun underneath the cushion on which Morton had been sitting.

Officer Hays then arrested Morton and called Officer Marvin

Parker to transport her to the police station. The officers

questioned the passenger but did not place him under arrest. 

On the way to the station, Morton expressed 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 that “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 down 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.” 

Morton 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 testified
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against Morton at her trial, recalling the conversation for the

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

The Government admits Morton was in custody when

she made the incriminating statements and that no officer had

informed Morton of her rights under Miranda v. Arizona, 384

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

the conversation with Officer Parker and concedes that Officer

Parker 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 comments were “reasonably likely to elicit an incriminating

response” from Morton. Rhode Island v. Innis, 446 U.S. 291,

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

was admissible because Morton initiated the conversation and

her incriminating remarks were spontaneous and voluntary. See

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

“‘Interrogation,’ as conceptualized in the Miranda

opinion, requires a measure of compulsion above and beyond

that inherent in custody itself.” Innis, 446 U.S. at 300. Here, as

the Government maintains, Officer Parker did not “compel” or

even encourage Morton to incriminate herself. Officer Parker’s

statements -- that Morton’s vehicle would be impounded 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 said and were not reasonably likely to elicit an

incriminating response. Morton, therefore, was not under

interrogation, see United States v. Bogle, 114 F.3d 1271, 1275

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

motion to suppress.
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II. Officer Beyer’s “Opinion” Testimony

At trial, Morton’s strategy was to suggest the gun

belonged to her passenger. The prosecuting attorney asked

Officer Beyer why the passenger had not been arrested, and

Officer Beyer responded:

Based on the position of the gun being under Ms.

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

console, 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 erred in permitting Officer

Beyer to opine whether the passenger knew about the gun under

Morton’s seat cushion and whether the passenger could have

seen the gun, testimony which “directly undermined” her

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

adequate foundation, or indeed any foundation at all, for Officer

Beyer’s opinion testimony.”

Morton’s trial counsel did not object to that portion of

Beyer’s testimony. Therefore, as both parties correctly observe,

in order for Morton to succeed on appeal she must demonstrate

that the trial court committed 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 contemporaneous objection at trial, a

reviewing court may correct “only particularly egregious errors,

those errors that seriously 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.
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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 actually 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 testimony. See United States v. Giovanetti, 919

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

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

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

inferential knowledge”).

Second, we note that Morton’s failure to object to

Officer Beyer’s testimony for lack of foundation deprived the

Government of any opportunity to lay a proper foundation. See

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

Morton 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 circumstances, the district court did not plainly err

in failing to strike Officer Beyer’s testimony sua sponte.

Finally, the Government maintains that even if the error

was plain, Morton cannot show prejudice. We agree. There was

ample evidence to support the jury’s determination that Morton

possessed the firearm without the portion of Officer Beyer’s

testimony that Morton now challenges. In addition to her own

incriminating statements, there was evidence that Morton owned

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

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

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

have been different if the trial court had corrected the purported

error. See United States v. Sumlin, 271 F.3d 274, 281 (D.C. Cir.

2001).
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III. Conclusion

We agree with the district court that Officer Parker did

not interrogate Morton or coerce her into making any

incriminating statement. We also hold that Morton’s challenge

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

Therefore the judgment of the district court is 

Affirmed.