*1 In the
United States Court of Appeals
For the Seventh Circuit
No. 99-3307
United States of America,
Plaintiff-Appellee,
v.
Louis J. Wesela,
Defendant-Appellant.
Appeal from the United States District Court for the Eastern District of Wisconsin.
No. 99-CR-24--Rudolph T. Randa, Judge.
Argued January 18, 2000--Decided August 3, 2000 Before Easterbrook, Kanne, and Diane P. Wood, Circuit Judges.
Diane P. Wood, Circuit Judge.
I
At approximately 1:15 a.m. on Tuesday, January 26, 1999, the Milwaukee Police Department received a 911 call from Mrs. Elizabeth Wesela.
She told the operator that her husband, Louis Wesela, had a gun, had been threatening to kill her, and had shot and killed a family cat. Mrs.
Wesela reported that her husband had fallen asleep, and she asked the police to come to her home.
When the police arrived, Mrs. Wesela admitted them to the couple’s apartment. The officers asked where the man with the gun was; Mrs. Wesela responded that he was in the bedroom, and she volunteered that the gun was next to him on the bed. The police found Louis Wesela laying on the bed in the bedroom. After getting him up, the policе ordered him out of the room and placed him under arrest. One officer then searched the bedroom for the gun and found it on a table under a pile of clothes. While in the bedroom, the officer noticed a pair of white tennis shoes stained with a drop of blood as well as a blood stain on the carpet. The officer then looked *2 under the bed and saw cat feces against the wall. After the bedroom search, Wеsela was taken to the hospital for medical treatment.
Detectives Schmitz and Corbett arrived at the Wesela home at 2:15 a.m. After a uniformed police officer briefed them, Detective Schmitz interviewed Mrs. Wesela in the apartment’s living room. During the half-hour interview, Mrs. Wesela explained that she and her husband had been arguing since Sunday (January 24, 1999). She told Detective Schmitz that her husband had threatened to kill her. During the argument, he had behaved violently: he confronted an upstairs neighbor with the gun, shot the gun into the ceiling, and shot and killed one of the family’s cats. Mrs.
Wesela explained that he threw the dead cat in the garbage container behind the apartment building. After preparing himself a drink, Wesela went to sleep at around 10:00 p.m. Mrs. Wesela waited in the living room until she was certain he was sleeping. She then called the police.
As Detective Schmitz spoke with Mrs. Wesela, Detective Corbett went about collecting evidence. He did not ask Mrs. Wesela for permission to conduct the search, but Mrs. Wesela did not object to what he was doing. A uniformed police officer directed the detective to the evidence that had been discovered prior to the detectives’ arrival. Detective Corbett found the dead cat in the outside garbage bin as Mrs. Wesela had reportеd and observed a trail of blood leading from the container to the apartment’s back door.
He also located a bullet hole in the ceiling and noted the location of the gun, ammunition, and blood stain in the bedroom. Detective Corbett also found an uncovered cardboard box in the bedroom, with books, paperwork, and a box for a Taurus .22 revolver inside. While searching the bedroom, Detective Corbett ovеrheard Mrs. Wesela describe how her husband shot the cat while it was underneath the bed. Detective Corbett then looked under the bed, moved it away from the wall, and found a bullethole in the baseboard where the cat had been shot. He removed the bullet.
After a trial, Wesela was convicted of being a felon in possession of a firearm in violation of 18 U.S.C. sec.sec. 922(g), 924(e). The only issue disputed at trial was Wesela’s possession оf the firearm, as the parties stipulated that Wesela had previously been convicted of a felony. Wesela raises several issues in this appeal. Because any errors made were harmless in the face of the overwhelming evidence, we affirm Wesela’s conviction.
II
A. Constitutionality of the Felon in Possession Statute
Wesela first argues that one of the statutes under which he was convicted, 18 U.S.C. sec.
922(g), is unconstitutional because it exceeds Congress’s powеrs under the Commerce Clause. We have already rejected this with respect to sec.
922(g). See United States v. Williams, 128 F.3d 1128 (7th Cir. 1997). Williams distinguished sec. 922(g) from the statute the Supreme Court considered in United States v. Lopez, 514 U.S.
549 (1995), on the ground that sec. 922(g),
unlike the Lopez statute (18 U.S.C. sec. 922(q)),
specifically requires that the possession must be
"in or affecting interstate commerce." 128 F.3d
at 1133-34. Nothing in United States v. Morrison,
13981, on the ground that it exceeded Congress’s
power under the Commerce Clause, but the Court
was careful to note that the Act did not contain
a jurisdictional element. Morrison,
B. Motion to Suppress
Before trial, Wesela filed a motion to suppress evidence gathered from his apartment and incriminating statements he made following his arrest. The district court denied the motion and allowed all of the evidence in. In reviewing a district court’s denial of a motion to suppress, we review findings of historical fact and credibility determinations for clear error.
United States v. Johnson,
1. Evidence Gathered During Searches Wesela first contests the legality of the officers’ search for his gun immediately following his arrest. His theory is that Mrs.
Wesela allowed the officers to enter her home for one very limitеd purpose: to arrest him. He contends that Mrs. Wesela did not consent to a search for the gun, or, in the alternative, that even if she impliedly consented to a search for the gun, the officers exceeded the scope of that implied consent. (He concedes that if the search for the gun was permissible, then evidence of the rest of the items discovered during that search, such as the blood-stained tennis shoes, сat feces, and blood stain on the rug, were admissible under the plain view doctrine.) Wesela also contests the admission of evidence related to items found during Detective Corbett’s search of the home (the bullet in the baseboard, the gun box, and the shell casings). For the latter search, he argues again that his wife did not give her express consent and, because she was being interviewed by Detective Schmitz while Detective Corbеtt searched, she could not have impliedly consented either.
Following a hearing on the motion to suppress, Magistrate Judge Gorence made several findings of fact, which the district court adopted in their entirety. The district court, however, drew different legal conclusions from those findings.
Both judges agreed that Mrs. Wesela consented to the police entry of her apartment to arrest her husband and to search for the gun. Thе magistrate judge, who found that the scope of her consent was limited to looking for the gun, would have suppressed the items Detective Corbett found, because Mrs. Wesela never broadened her consent.
The district court saw things differently. It concluded that Mrs. Wesela’s failure to object constituted general consent to the search, and all evidence discovered by Detective Corbett--the documents in the gun box, the bullet in thе baseboard, and the two shell casings deep inside the garbage bag--was admissible.
Under the Fourth Amendment, the standard for measuring the scope of an individual’s consent is "objective reasonableness": "what would the typical reasonable person have understood by the exchange between the officer and the [person giving consent]?" Florida v. Jimeno, 500 U.S.
248, 251 (1991). The scope of a search is generally defined by its "expressed оbject." Id.
To determine whether a search was within the
boundaries of consent is determined according to
the "totality of all the circumstances." United
States v. Torres,
1994).
We agree with the district court that these facts demonstrate Mrs. Wesela’s consent to search the apartment for both her husband and the gun.
She called the agents for the express purpose of
*5
ridding her house of the threat posed by her
(armed) husband, and she allowed the officers to
enter her house in order to arrеst him. At the
suppression hearing, one of the officers
testified that she consented to the officers’
entering the apartment to secure both the man and
the gun. Mrs. Wesela herself told the officers
where they could find the gun. The fact that
there was no direct verbal exchange between
Detective Corbett and Mrs. Wesela in which she
explicitly said "it’s o.k. with me for you to
search the apartment," is immaterial, as the
events indicatе her implicit consent. Mrs. Wesela
was in the living room while the search was going
on in the bedroom; the bedroom was not visible
from the living room, but Detective Corbett was
able to overhear her description of events while
he was in the bedroom and she was able to hear
and respond to his question about the ownership
of the tennis shoes. Due to the proximity of the
rooms, Mrs. Wesela was probably aware of what was
going on in the bedroom and elsewhere in the
apartment. Had she wished to do so, she could
have objected to Detective Corbett’s search. See
United States v. Stribling,
The district court reasonably concluded that Mrs. Wesela at the very least implicitly consented to the search. Had Detective Corbett conducted an all-out search of the Wesela home, perhaps the result would be different. But everything he did was narrowly confinеd to finding evidence related to the events of that evening: the gun, the bullets, the shell casings, and the dead cat. He did not go through drawers, rummage through closets, or search other rooms of the house in an attempt to find drugs, money, or any other extraneous evidence of other possible illegal activities. Under the circumstances here, the court did not err in denying Wesela’s motion to suppress.
2. Post-Arrest Statements
After his arrest, Wesela made two stаtements to the police that he argues should have been suppressed. He made the first one on the morning of January 26, 1999, during questioning by Detective Corbett. The detective read Wesela his Miranda rights and asked him if he understood them. After responding that he did, Wesela asked, "Could I get a lawyer?" Detective Corbett responded that he could not call one for him.Wesela then stated, "I can’t call one either. All right here’s what hapрened." Wesela then described the events leading to his arrest.
Wesela made more incriminating statements on *6 February 1, 1999, to Special Agent Darin ("SA Darin") of the United States Bureau of Alcohol, Tobacco and Firearms. SA Darin had the job of transporting Wesela to the federal courthouse in Milwaukee for his initial appearance. En route, SA Darin gave Wesela a copy of the criminal complaint and explained federal court procedures to him. Wesеla made an unsolicited comment to SA Darin, who responded that he was not going to advise Wesela of his Miranda rights and that he did not want to discuss the facts of the case.
Later that day, SA Darin escorted Wesela to a courtroom. As they were waiting outside the courtroom on a bench, Wesela again began talking about the facts of the case. SA Darin again warned Wesela that he did not want to talk about the facts of the case, and he told Wesela that he might have an appointed attorney already.
Undeterred, Wesela then described his argument with his wife and (in great detail) why and how he had shot the cat.
Wesela argues that his statements to SA Darin
should have been suppressed as fruits of the
poisonous tree (the alleged poisonous tree being
Detective Corbett’s initial statement he could
not get a lawyer for him, in lieu of leaving
Wesеla alone). The first problem Wesela faces is
that, under Duckworth v. Eagan,
Detective Corbett’s statement was similar to the
one the Court found acceptable in Eagan, where
the police told the defendant that he had a right
to a lawyer, but that they had no way of giving
him one. Id. at 198. Furthermore, even if some
distinction between this case and Eagan could be
found (if, for instance, that particular part of
the case were sеen as dicta), Wesela’s statements
were still admissible under Brown v. Illinois,
452, 458 (1981), citing Edwards v. Arizona, 451 U.S. 477, 484-85 (1981).
Wesela’s statement to SA Darin is not
inadmissible under Brown or Edwards. There can be
no doubt that Wesela volunteered his statements
*7
to SA Darin. SA Darin repeatedly informed Wesela
that he did not want to talk about the facts of
the case. Indeed, we are hard pressed to imagine
a more conscientious refusal to take advantage of
the situation than SA Darin’s. Wesela ignored SA
Darin’s requests not to speak with him about the
case. Instead, he kept talking, eventually
incriminating himself by describing how he shot
the cat (and thereby essentially admitting he had
possession of the gun). Moreover, Wesela’s
statements to SA Darin were made six days after
his interview with Detective Corbett. Six days
was a sufficiently long period of time for Wesela
to reflect on his predicament, collect his
thoughts about his interview with Detective
Corbett, and decide whether he wanted to speak
with an attorney before making any further
statements. The fact that he was in custody
during the six intervening days is not
dispositive of his case. Cf. Patino,
C. Statements of Mrs. Wesela At trial, the government used Detective Schmitz to introduce statements made by Mrs. Wesela during her interview with Detective Schmitz at 2:18 a.m. on January 26, 1999, including her description of the events of January 24 and 25.
Detective Schmitz’s account of what Mrs. Wesela told her during their conversation was, of course, hearsay. The government offered three bases for admitting the hearsay testimony for its truth: Fed. R. Evid. 803(1) (present sense imрression); 803(2) (excited utterance); and 807 (residual or catchall exception for statements having "circumstantial guarantees of trustworthiness"). The district court initially admitted the testimony pursuant to the residual hearsay exception, Rule 807, and reserved the question of admissibility under Rules 803(1) and 803(2). At trial, however, the court also cited Rule 803(2) as justification for its admission.
Wesela contests only the admission under Rule 803(2).
We review evidentiary decisions for abuse of
*8
discretion. United States v. Singleton, 125 F.3d
1097, 1106 (7th Cir. 1997)--that is, has the
district court done something so far out of linе
that "no reasonable person could agree" with its
rulings. United States v. Sinclair,
803(2). Hearsay statements are admissible under the excited utterance exception if (1) a startling event occurred; (2) the declarant made the statement while under the stress of excitement caused by the startling event; and (3) the declarant’s statement relates to the startling event. United States v. Sowa, 34 F.3d 447, 453 (7th Cir. 1994) (citations omitted). The basis of the exception is that "such statements are given under circumstances that eliminate the possibility of fabrication, coaching, or confabulation." Id. at 452-53, quoting Idaho v.
Wright,
Gross v. Greer,
1985). "All that the exception requires is ’that thе statement be made contemporaneously with the excitement resulting from the event, not necessarily with the event itself.’" Smith v.
Fairman,
Wesela argues that it was an abuse of discretion to allow in the statements pertaining to the events of the 24th and the morning of the 25th. He contends that at the time Mrs. Wesela made those statements, she was stressed and excited, but her stress and excitement did not stem from the events that occurred on the 24th and the mоrning of the 25th; instead, she was agitated because of the events of the evening of the 25th. The court disagreed and found that the events over the 24th and 25th were part of a continuing course of conduct which left Mrs.
Wesela in a stressed and excited condition. The court therefore allowed in the statements regarding all of the events.
The government is correct that some courts have found statements following a long lapse in timе to fall within the excited utterance exception.
However, these cases generally involve young
children who are the victims or witnesses of
crime. See, e.g., Sowa,
Several hours passed between the events of the morning of January 24 and 25 and the time Mrs.
Wesela spoke to Detective Schmitz. Mrs. Wesela was not under a continuous threat; to the contrary, she was at work and away from Wesela for a full workday. That she was able to go to work demonstrates that she had regained at least some of her composure and emotional control.
Therеfore, although Wesela engaged in a pattern of threatening behavior, one cannot say that Mrs. Wesela was under continuous, uninterrupted stress and excitement. By accepting a lesser state of mental angst as enough to satisfy Rule 803(2), the district court applied the wrong legal standard. It thus abused its discretion in admitting Mrs. Wesela’s statements regarding the 24th and the morning of the 25th.
The error, however, was harmless. Because the parties hаd stipulated that Wesela was a felon, the only contested issue at trial was whether Wesela possessed a firearm. The evidence seized from the Weselas’ apartment (e.g., the dead cat, shell casings, gun, and gun box) combined with SA Darin’s testimony regarding Wesela’s admission of why and how he shot the cat provided incontrovertible evidence that Wesela possessed the gun. Detective Schmitz’s testimony regarding Mrs. Wesela’s statements were completely unnecessary to gain Wesela’s conviction.
Our finding of harmless error makes it
unnecessary as well for us to decide whether Mrs.
Wesela’s testimony could have been admitted under
Rule 807. We note, however, that Sixth Amendment
Confrontation Clause problems can arise if
evidence from an unavailable witness is used
against a defendant. As Justice Stevens put it in
Lilly v. Virginia,
Here, Mrs. Wesela was arguably unavailable,
because it appeared that she might have been
prepared to invoke her spousal privilege under
Fed. R. Evid. 501. In addition, Rule 807 almost
by definition is not a "firmly rooted" or
"longstanding exception" to the hearsay rule. To
the contrary, it is the "residual" exception--the
catchall. Thus, before evidence can come in under
that rule there must be equivalent circumstantial
guarantees of its trustworthiness. These
questions would be worth exploring but for two
facts: first, Wesela never argued that his
confrontation rights would be violated if
Detective Schmitz’s hearsay statements about Mrs.
Wesela were admitted only under Rulе 807, and
second, like most errors even of constitutional
dimension, this one is subject to harmless error
analysis. Delaware v. Van Arsdall,
III
Wesela stipulated that he had previously been convicted of a felony, and he admitted that he shot the cat with a gun. Finding no error in the district court’s suppression rulings, and nothing that amounted to more than harmless error in its evidentiary decisions, this was more than enough to support his conviction, which we Affirm.