NOTICE: Sixth Cirсuit Rule 24(c) states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Sixth Circuit.
UNITED STATES of America, Plaintiff-Appellee,
v.
Melvin TURNER, Defendant-Appellant.
No. 92-6381.
United States Court of Appeals, Sixth Circuit.
Aug. 4, 1993.
Before: KENNEDY and NORRIS, Circuit Judges, and ENGEL, Senior Circuit Judge.
PER CURIAM.
Defendant Melvin Turner appeals from his jury conviction and sentence for possession of a firearm by a convicted felon, in violation of 18 U.S.C. Sec. 922(g). On appeal, defendant contends that: (1) the Distriсt Court erred in denying his request for a jury instruction on the defense of justification; (2) the District Court erred in admitting his statements to a law enforcement officer because they were obtained in violation of Miranda; (3) the District Court erred in denying his request to call a surrebuttal witness; (4) the District Court erred in failing to give a limiting instruction as to the predicate felonies set forth in the indictment; (5) the District Court erred in sentencing him as an armed career criminal; and (6) he was denied effective assistance of сounsel. For the reasons set forth below, we affirm.
I.
On November 22, 1990, a radio dispatcher for the Shelby County, Tennessee Sheriff's Department received a "911" emergency call from the defendant's ex-girlfriend, Thelma Clay. The 911 operator heard Ms. Clay screaming that defendant was in her house, that he had a gun, and that he was trying to kill her. In addition to loud arguing and scuffling in the background, the operator also heard a man's voice yell, "I'll blow your head off." Immediately thereafter, the operator dispatched sheriff's deputies to Ms. Clay's home. The operator kept the line into Ms. Clay's home open until the deputies arrived and she continued to hear screaming, scuffling, and fighting within the home.
When the deputies arrived at 2939 Meadowfair (Ms. Clay's home), only the defendant and Ms. Clay were inside the residence. The deputies noticed that the side door had been broken off its frame and forced open from the outside. Upon entering the home and talking with Ms. Clay (who was still very upset and excited), the officers observed that she had fresh bruises and red welts on her face. Ms. Clay told the officers that the defendant had kicked in her door, beaten her, and fired shots at her. The officers then saw defendant coming out of one of the bedrooms and they arrested him. Just inside this bedroom, the officers found (under the bed) a loaded .22 caliber rifle. The officers also found a spent .22 round on the living room floor and a bullet mark on the living room fireplace.
Upon his arrest, the dеfendant was placed in a squad car outside Ms. Clay's residence. Officer Richard Nelson testified that he advised the defendant of his Miranda rights. The defendant was then questioned by Lt. J.J. Leatherwood of the Shelby County Sheriff's Department. At this time, defendant told Lt. Leatherwood of the Shelby County Sheriff's Department. At this time, defendant told Lt. Leatherwood that he was not shooting at Ms. Clay, but rather, was only shooting at the side of her in an effort to scare her. The defendant also stated that he had gotten intо a domestic argument with Clay, that she went and got a rifle, and that he took it from her and put it in the bedroom.
On August 21, 1991, defendant was charged in a one-count indictment with possessing a firearm after having been convicted of crimes punishable by a term of imprisonment in excess of one year, in violation of 18 U.S.C. Sec. 922(g).1 Prior to trial on this charge, the government filed a written notice that it was seeking to have the defendant sentenced pursuant to the Armed Career Criminal Act ("ACCA"), 18 U.S.C. Sec. 924(e).2
During the jury trial, Thelma Clay testified as a witness for the defense. On direct examination she stated that defendant, her ex-boyfriend, entered her house in the middle of the night on November 22, 1990, that he slapped her around "a couple of times," and that she got out her .22 rifle in an effort to make defendant leave. Ms. Clay claimed that she and defendant struggled over the rifle, that it somehow went off, and that defendant then took it away from her. Ms. Clay testified that the .22 rifle had belonged to her father-in-law and was given to her when he died. To rebut this testimony, the government proved that Ms. Clay's father-in-law died on March 31, 1987. The government then called Rob Yates who testified that he had purchased the .22 rifle in question and it had remained in his possession until November 7, 1989, at which time it was stolen from his apartment.
On December 4, 1991, the jury returned a verdict of guilty. At the sentencing hearing held on August 5, 1992, the District Court found that defendant was subject to the ACCA and sentenced him to a term of 210 months imprisonment. This timely appeal followed.
II. Justification Defense
According to the defendant's version of the facts, as adduced by his own testimony and that of Thelma Clay, it was Ms. Clay who, sometime during the couple's altercation, brought the .22 rifle out of the bedroom in an effort to get defendant to leave her home. The defendant then wrestled with Clay, took the rifle away from her, and "hid" the gun in one of the bedrooms. Pursuant to these events, defendant requested that the District Court instruct the jury on the defense of justification. Although 18 U.S.C. Sec. 922(g) states only that "it shall be unlawful" for a felon to possess a firearm, this Court has recognized a justification defense. United States v. Crawford,
(1) the defendant was under an unlawful and "present, imminent, and impending [threat] of such a nature as to induce a well-grounded apprehension of death or serious bodily injury" ...;
(2) that defendant had not "recklessly or negligently placed himself in a situation in which it was probable that he would be [forced to choose the criminal conduct]" ...;
(3) that defendant had no "reasonable legal alternative to violating the law" ...; and
(4) "that a direct causal relationship may be reasonably anticipated between the [criminal] action taken and the avoidance of the [threatened] harm."
United States v. Singleton,
It is clear from a review of defendant's version оf the facts that he has failed to sustain his burden of producing sufficient evidence to warrant an instruction to the jury on the defense of justification. Defendant testified that he knew, based upon having lived with Ms. Clay for several years, that she would not do any physical harm to him. Joint App. at 130. Defendant may arguably meet this first requirement by his testimony that he feared she would discharge the gun accidentally since she was unfamiliar with guns, thus there was some basis to find he had a "well grounded apprehension of death or serious bodily injury" when he took possession of the firearm. Defendant, however, fails the second test. It is clear that defendant "recklessly or negligently placed himself in a situation in which it was probable he would be forced to choose the criminal conduct," when he broke into the home of his ex-girlfriend in the middle of the night, refused to leave when it was obvious she did not want him there, and ultimately beat her up.
Even assuming, arguendo, that the District Court erred in refusing to instruct the jury on the defense of justification, such error was harmless. Ms. Clay's statement at the time of the incident was that defendant had fired shots at her. The 911 operator testified that she heard defendant tell Clay "I'll blow your head off." Lt. Leatherwood testified that, shortly after defendant's arrest, defendant told him that "he wasn't shooting at his girlfriend, [he was] just shooting at the side of her to scare her." Additionally, the evidence adduced at trial further established that the gun possessed by defendant was not acquired by Thelma Clay in the manner in which she claimed. The District Court's failure to instruct the jury on the defense of justification did not "affect [defendant's] substantial rights." Fed.R.Crim.P. 52(a).
III. Failure to Give Miranda Warnings
Shortly after his arrest, defendant told Lt. Leatherwood of the sheriff's department that "he wasn't shooting at his girlfriend, [he was] just shooting at the side of her to scare her." Joint App. at 87. Defendant contends that this statement should have been suppressed because it was obtained in violation of Miranda v. Arizona,
After Lt. Leatherwood's direct testimony (regarding the statement made to him by defendant), defense counsel requested a bench conference wherein she objected to the admission of the statement since Lt. Leatherwood had not tеstified that he advised defendant of his Miranda rights. The District Court denied the objection but requested the government to call the witness who actually advised defendant of his Miranda rights. Thereafter, the government called Officer Richard Nelson who testified that after defendant was placed in custody, he advised him of his Miranda rights. Officer Nelson further testified that he told Lt. Leatherwood defendant had been so advised prior to Leatherwood's talking with defendant. The District Court credited this testimony. Accordingly, defendant's contention that he did not receive adequate Miranda warnings is without merit.
IV. Failure to Admit Surrebuttal Testimony
During trial, defendant's theory of the case was that he only innocently and briefly possessed the rifle when he wrestled it away from Thelma Clay. The government's theory, however, was that defendant brought the .22 rifle into Ms. Clay's house and used it to terrorize her by firing it in her direction. In support of the defense, Thelma Clay testified that the .22 rifle in question belonged to her father-in-law and had been given to her upon his death оn March 31, 1987. To rebut this evidence, the government called Rob Yates who testified that he had purchased the .22 rifle and it remained in his possession until November 7, 1989, at which time it was stolen from his apartment. Thereafter, the defense requested permission to call a surrebuttal witness. This witness was a custodian of records for the Memphis Police Department who was prepared to testify that a search of the files showed no written police report regarding the theft of the rifle. Thе District Court declined to let this witness testify before the jury. The court determined that the government had not raised new matters in its rebuttal and that, in any event, the proffered testimony did not add "anything of substance to this case."
This Court reviews a district court's rulings on the admission or exclusion of surrebuttal evidence for abuse of discretion. See Martin v. Weaver,
V. Predicate Felonies Listed in Indictment
The defendant next contends that the District Court erred in not giving the jury a limiting instruction regarding the multiple predicate felonies set forth in the indictment. Count One of the Indictment reads:
On or about the 22nd day of November, 1990, in the Western District of Tennessee, MELVIN TURNER having been convicted of crimes punishable by a term of imprisonment exceeding one year, that is:
1. Third Degree Burglary ... in the Criminal Court of Shelby County, Tennessee, on March 17, 1971,
2. Petit Larceny; Receiving and Concealing Stolen Property; ... in the Criminal Court of Shelby County, Tennessee, on March 17, 1971,
3. Fraudulent Use of a Credit Card ... in the Criminal Court of Shelby County, Tennеssee, on March 17, 1971,
4. Attempt to Commit a Felony; to wit Burglary Third Degree ... in the Criminal Court of Shelby County, Tennessee, on March 17, 1971,
5. Burglary Second Degree in the Criminal Court of Shelby County, Tennessee, on June 3, 1974,
6. Robbery with a Deadly Weapon in the Criminal Court of Shelby County, Tennessee on March 30, 1983,
did knowingly possess and receive a firearm which had been shipped and transported in interstate commerce, that is a .22 caliber rifle, in violation of Title 18 United States Code Section 922(g).
Joint App. at A1-A2. Defendant аrgues that it was grossly prejudicial to include six felonies as it was only necessary for the government to prove one prior violent felony conviction to make out a case under section 922(g).
This Court has held, however, that in a "felon in possession" case, the indictment may charge more than one felony conviction and the government is not limited to establishing only a single conviction. United States v. Ford,
Under this same rationale, it was not error for the District Court to fail to give the jury a limiting instruction. Pursuant to Fed.R.Evid. 105, "the court, upon request shall restrict the evidence to its proper scope and instruct the jury accordingly." In the case at issue, any objection to the lack of a limiting instruction was waived by the defendant's failure to make a timely request for such an instruction. United States v. Christian,
"[A]n improper jury instruction will rarely justify reversal of a criminal conviction when no objection has been made at trial, ... and an omitted or incomplete instruction is even less likely to justify reversal, since such an instruction is not as prejudicial as a misstatement of law." United States v. Hook,
Id. at 213-14. At least one Court has recognized that in a "felon in possession" case, a district court's failure to give a limiting instruction (directing the jury not to consider a defendant's prior criminal record as evidence of guilt) on its own motion was not plain error cognizable under Rule 52(b). See United States v. Smith,
VI. Sentencing Under the Armed Career Criminal Act
A. Constitutional Validity of State Convictions
The District Court sentenced the defendant as an Armed Career Criminal under 18 U.S.C. Sec. 924(e) because defendant had been convicted of violating 18 U.S.C. Sec. 922(g) and had previously been convicted of three (3) violent felonies in Tennessee (Third Degree Burglary in 1971, Second Degree Burglary in 1974, and Conspiracy to Commit Robbery with a Deadly Weapon in 1983) and one (1) violent felony in Arkansas (Burglary in 1975). Defendant now contests (for the first time) the constitutional validity of several of the prior state convictions upon which the government relied in seeking enhancement of defendant's sentence under section 924(e). Specifically, defendant argues that the government failed to adduce sufficient proof to show that his prior burglary convictions were obtained with the full protection of the safe-guards required by Boykin v. Alabama,
In United States v. Hoffman,
Section 924(e) mandates an enhanced sentence of not less than 15 years for a defendant who has three prior convictions for a violent felony or serious drug offense. 18 U.S.C. Sec. 924(e). For the conviction to count for enhancement purposes, it must have been constitutionally obtained. United States v. Gallman,
To establish the validity of defendant's 1971 Third Degree Burglary Conviction and 1974 Second Degree Burglary Conviction, the government introduced (through the deputy clerk and custodian of records in the Shelby County, Tennessee Criminal Clerk's office) petitions for "waiver of trial by jury and request for the acceptance of a plea of guilty," that were signed by the defendant. The deputy clerk also testified that these "petitions for waiver" are commonly found in the criminal court files from the 1970's and that they have to be signed in front of the judge before he will accept the guilty plea. Sent. Hrg. at 17-18. The government also introduced a transcript regarding the 1974 conviction.
This Court has held that "once the government adduces documentary evidence that a defendant properly waived his rights, the burden shifts to the defendant to prove 'that his convictions were in fact not constitutionally sound.' " Warren,
In the case at hand, the District Court found that the government satisfied its burden by introducing the waiver of rights forms. This documentary proof was strong enough to shift to defendant the burden of proving his convictions were in fact not constitutionally sound. Defendant failed to meet that burden, introducing only his own self-serving testimony (that to the best of his recollection he was never informed of the rights he was waiving by pleading guilty) to support his contention that his guilty pleas were constitutionally infirm. Accordingly, defendant's two prior Tennessee convictions for Burglary, as well as his 1983 jury conviction for Conspiracy to Commit Robbery (the validity of which defendant does not contest) were properly used by the District Court to sentence defendant as an armed career criminal. It is therefore unnecessary for the Court to consider dеfendant's challenge to his Arkansas conviction.
B. 1971 Tennessee Burglary Conviction
Defendant contends that the District Court erred in considering his 1971 burglary conviction as one of the predicate felonies for enhancement of sentencing under section 924(e) because this conviction was over 15 years old and therefore "ancient" and "stale." This argument lacks merit under the plain language of section 924(e). That section places no restriction on how recent prior convictions for violent felonies must be in order to be considered for enhancing a defendant's sentence under the Act. United States v. Preston,
When the statutory criteria of Sec. 924(e) are met, the section provides for a statutory minimum penalty of fifteen years. Although the Sentencing Guidelines may restrict the sentencing court's consideration of certain past offenses, Sec. 924(e) does not.
United States v. Moreno,
C. Cruel and Unusual Punishment
Defendant also contends that his 210-month sentence under the ACCA constitutes cruel and unusual punishment in violation of the Eight Amendment. This Court has already held, however, that sentences under the ACCA do not violate the Eight Amendment's proscription of cruel and unusual punishment. United States v. Warren,
VII. Ineffective Assistance of Counsel
Defendant next alleges that he was deprived of his right to effective assistance of counsel because his trial counsel (1) failed to request a downward departure from the sentence imposed under the ACCA and (2) failed to make a motion to strike defendant's 1971 conviction for Attempt to Commit a Felony, to wit, burglary, from the indictment. Defendant did not make this clаim to the District Court. It is well settled that:
As a general rule, we will not review an ineffective assistance of counsel claim raised for the first time on appeal. Ineffective assistance of counsel claims are best brought by a defendant in a post-conviction proceeding under 28 U.S.C. Sec. 2255 so that the parties can develop an adequate record on the issue. We will consider an ineffective assistance of counsel claim on direct appeal only when the record is adequate to assess the merits of the defendant's allegations.
United States v. Daniel,
VIII.
For the aforementioned reasons, defendant's conviction and sentence are AFFIRMED.
Notes
18 U.S.C. Sec. 922(g)(1) provides in pertinent part:
It shall be unlawful for any person--who has been convicted in any court of, a crime punishable by imprisonment for a term exceeding one year; ... to ship or transport in interstate or foreign commerce, or possess in or affecting commerce, any firearm or ammunition....
18 U.S.C. Sec. 924(e)(1) provides, in pertinent part:
In the case of a person who violates section 922(g) of this title and has three previous convictions by any court referred to in section 922(g)(1) of this title for a violent felony or a serious drug offense, or both, committed on occasions different from one another, such person shall be fined not more than $25,000 and imprisoned not less than fifteen years....
Defendant also contends that the indictment, which erroneously listed one of defendant's prior felony convictions as "Robbery with a Deadly Weapon" instead of "Conspiracy to Commit Robbery With a Deadly Weapon," misled the jury and prejudiced the defendant. However, the government made it clear to the jury (during its opening and closing arguments and on direct examination) that defendant had previously been convicted of conspiracy to commit robbery with a deadly weapon and not the substantive offense itself