USCA1 Opinion
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
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No. 94-1049
UNITED STATES,
Appellee,
v.
TERRY LYNN COLLINS,
Defendant-Appellant.
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APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Robert E. Keeton, U.S. District Judge]
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Before
Boudin and Lynch, Circuit Judges,
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and Schwarzer,* Senior District Judge.
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Lawrence Rizman for the appellant.
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Michael Pelgro, Assistant United States Attorney, with whom
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Donald K. Stern, United States Attorney, and Ralph F. Boyd, Jr.,
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Assistant United States Attorney, were on brief, for the United
States.
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July 20, 1995
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* Of the District of Northern California, sitting by designation.
LYNCH, Circuit Judge. Convicted of being a felon
LYNCH, Circuit Judge.
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in possession of a firearm in violation of 18 U.S.C.
922(g)(1), Terry Lynn Collins received a sentence of more
than 15 years (188 months) in prison. He appeals, claiming
that his conviction should be reversed under United States
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v. Tavares, 21 F.3d 1 (1st Cir. 1994)(en banc), in which this
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court, after Collins' trial, changed its rule concerning the
admissibility of the nature of the prior felony conviction in
prosecutions under 922(g)(1). Collins also argues that the
court abused its discretion in admitting as an "excited
utterance" the statement of his intended victim and that
overall the evidence is insufficient to support his
conviction. His conviction is affirmed.
First, the facts, as they were presented to the
jury. Renewing an old and unfriendly acquaintance, Collins,
leaning out of his car window, got into an escalating
argument with Harry Albizu in front of Albizu's parents' home
in Fitchburg on April 29, 1992. When Harry's hefty older
brother appeared on the front steps, Collins drove off,
yelling back to Harry, "I'll be right back. I'm gonna shoot
your fuckin' ass." Apparently believing Collins to be a man
of his word, an upset Harry Albizu hailed a police car,
containing Fitchburg State College Police Officer Lord, told
him of the threat, and Officer Lord radioed the Fitchburg
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Police for help. Albizu's sister called the police in the
meantime.
Sure enough, Collins returned shortly, driving the
Camaro he and his wife had just bought, and this time
bringing two men with him. Collins yelled for Albizu to come
out and out Albizu came, but only to the porch. Collins
tried to entice Albizu down from the porch steps with various
insults concerning Albizu's relationship with his mother.
Albizu tried to persuade Collins to leave, but the
weightlifting bar he threw at Collins missed.
Hearing police sirens approaching, Collins gestured
to his two comrades. They put a long stick-like object that
was wrapped up into the hatch of the Camaro. As the police
arrived, Collins, still yelling at Albizu, backpedaled toward
his car.
Police Officer Romano, as he patted down Collins
at the side of the Camaro, saw shotgun shells on the back
seat. The hatch door to the car was ajar. As Officer Romano
looked in, he saw a pump shotgun in a partially zippered case
next to two loose shotgun shells. The gun was fully loaded.
A fishing license and fishing rods, also in the hatch,
belonged to Collins. Officer Romano asked Collins if the
shotgun was his. Collins replied sarcastically, "No. It's
yours."
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Collins was placed under arrest. Hearing that he
was being arrested, an agitated Collins pointed at Albizu,
and said to a police officer he knew, "Why am I being
arrested? They've got guns too."
Simultaneously, Police Officer Raymond was
interviewing Albizu. A visibly upset Albizu described the
initial argument he had had with Collins, and quoted Collins'
statement as described earlier.
The gun was owned by Collins' father, who kept it
at his house, which was where Collins lived.
The Tavares Claim
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The prosecution at trial introduced, without
objection, Collins' prior felony conviction for manslaughter
and referred several times to the manslaughter conviction in
argument. Collins' counsel did not offer to stipulate that
Collins was a felon for purposes of 922(g)(1). Indeed,
under the law of this Circuit at the time of trial, the
government would not have been required to accept such a
stipulation. See United States v. Collamore, 868 F.2d 24, 28
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(1st Cir. 1989). Several months after Collins' trial, this
Court changed that rule in United States v. Tavares, 21 F.3d
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1, 5. Tavares "revisited this issue and determined that when
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a defendant is charged with being a felon-in-possession of a
firearm, evidence of the nature of the prior conviction is
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not admissible unless special circumstances establish that
the relevance of the evidence is 'sufficiently compelling to
survive the balancing test of Fed. R. Evid. 403.'" United
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States v. Lewis, 40 F.3d 1325, 1342-43 (1st Cir.
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1994)(quoting Tavares, 21 F.3d at 5).
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This Court has twice since applied Tavares.
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In United States v. Melvin, 27 F.3d 703 (1st Cir. 1994), the
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court applied Tavares retroactively to cases pending on
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direct review where counsel had offered to stipulate. Id. at
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706-07 n.4. In Melvin, the court reversed, finding that the
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admission of the convictions on the facts was not harmless
error. Id. at 709. In United States v. Lewis, 40 F.3d 1325
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(1st Cir. 1994), the court applied Tavares where defense
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counsel had offered to stipulate, but found that any error
was harmless. Id. at 1342-43.
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Hoping to benefit from Tavares, Collins attempts to
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shoehorn his arguments into categories that ill fit. He
argues that he suffered from ineffective assistance of
counsel because his counsel neither objected to nor offered
to stipulate as to the manslaughter conviction.1 But
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1. This Court does not normally consider ineffective
assistance of counsel claims on direct appeal. See, e.g.,
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United States v. Costa, 890 F.2d 480, 482-83 (1st Cir. 1989).
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When the record is sufficiently developed to allow analysis,
however, an appellate court may determine the merits of such
a contention on direct appeal. See United States v. Natanel,
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938 F.2d 302, 309 (1st Cir. 1991), cert. denied, 502 U.S.
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1079 (1992). This case falls within the exception.
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counsel made no error in light of the law at the time. The
test for an ineffective assistance of counsel claim as
articulated in Strickland v. Washington, 466 U.S. 668 (1984),
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is not met. Collins also argues that the admission of the
conviction was barred by Fed. R. Evid. 403, as unduly
prejudicial. Inasmuch as there was no objection, the normal
standard of review for such a claim would be for plain error
under Fed. R. Crim. P. 52(b), as explicated by the Supreme
Court in United States v. Olano, 113 S. Ct. 1770 (1993).
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Counsel, though, can hardly be faulted for not
objecting or for failing to stipulate, given the law at the
time. Considerations of fairness also raise questions about
the appropriate standard of review where the failure to
object (or to stipulate) most likely was based on counsel's
correct understanding of the law at the time.
In United States v. Marder, 48 F.3d 564 (1st Cir.),
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cert. denied, 115 S. Ct. 1441 (1995), this Court addressed an
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analogous situation. Without objection, the district court
had instructed on the elements of the government's case in
accordance with the law at the time. A subsequent Supreme
Court decision made clear that an additional instruction on
willfulness was required, to the effect that the jury had to
find that the defendant knew the currency structuring in
which he was engaged was unlawful. Id. at 572-73. This
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Court then faced the issue the Olano court specifically
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reserved: what happens "where the error was unclear at the
time of trial but becomes clear on appeal because the
applicable law has been clarified." Id. at 573 (quoting
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Olano, 113 S. Ct at 1777).
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The Marder court applied plain error analysis. It
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is worth noting that Marder had less sympathy with counsel's
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failure to object and for good reason. At the time of trial,
this Circuit's law foreshadowed the Supreme Court's decision
and the precise issue had caused withdrawal of an opinion by
this Court and reconsideration en banc. Counsel was on
notice. Id. at 572 n.5. The Marder court avoided analysis of
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issues that have divided other circuits on whether an "error"
occasioned by a change in law was plain error and whether the
defendant's substantial rights were affected2 by turning to
the last prong of the Olano analysis: whether the "error"
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"seriously affects the fairness, integrity or public
reputation of the judicial proceedings." Id. at 574
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(quoting Olano, 113 S. Ct. at 1779)). Marder held that a
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defective willfulness instruction did not have any of those
effects, disagreeing with the views of three other circuits.
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2. The Second Circuit has held that where the court has
clarified the law, fairness requires that the burden on plain
error analysis be shifted to the government to show that any
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error did not affect the defendant's substantial rights,
varying from Olano's rule that in the usual plain error
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analysis the burden is on the defendant to show actual
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prejudice. See United States v. Viola, 35 F.3d 37, 42 (2d
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Cir. 1994), cert. denied, 115 S. Ct. 1270 (1995).
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Id. at 574-75. Applying that analysis here, the admission of
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the manslaughter conviction does not present even as serious
a challenge as that posed in Marder, and certainly does not
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rise to the level required by Olano. See also United States
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v. Gaudin, 63 U.S.L.W. 4611, 4616-17 (1995) (Rehnquist, C.J.,
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concurring); United States v. Whiting, 28 F.3d 1296, 1309
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(1st Cir.), cert. denied 115 S. Ct. 378 (1994).
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Even if we allow for the differences between the
positions of counsel who failed to object in Marder and this
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case, it does not assist Collins. If there was any error
here, regardless of who has the burden on prejudice, such
error was not prejudicial. The district court on several
occasions gave limiting instructions as to the manslaughter
conviction, and the evidence of Collins' guilt was
overwhelming, including evidence from his own mouth.
Excited Utterance
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Collins argues that the district court erred in
admitting into evidence Albizu's statement to Officer Raymond
that Collins had said, "I'll be right back. I'm gonna shoot
your fuckin' ass." Collins argues that Albizu's testimony at
trial -- that the threat had been "I'm going to come back
and get your ass" -- did not confirm the statement. The
variance does not make the statement inadmissible, but only
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raises questions of credibility for the jury to decide. See
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United States v. Portalla, 985 F.2d 621, 624 (1st Cir. 1993).
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The district court's decision to admit evidence is
reviewed for an abuse of discretion. United States v.
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Bailey, 834 F.2d 218, 228 (1st Cir. 1987). The statement met
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the three pronged test under Fed. R. Evid. 803(2), i.e., (i)
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the declarant experienced a startling event; (ii) the
statement was made while the declarant was subject to the
influence of the event; and (iii) the statement related to
the event. See id. Albizu experienced the startling event of
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Collins threatening to return and shoot him. While Albizu
was visibly upset and agitated, Albizu made his statement to
Officer Raymond after Collins' second visit, earlier having
made a similar statement to Officer Lord. The statement
self-evidently related to the events at hand. The question
for the district court was whether a jury could find the
conditional fact upon which the relevancy of the statement
turned (i.e., whether Albizu made the statement) by a
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preponderance of the evidence. Huddleston v. United States,
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485 U.S. 681, 690 (1988). There were sufficient indicia of
reliability as to Officer Raymond's report. See Portalla,
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985 F.2d at 624. Officer Raymond wrote Albizu's statement
down verbatim, Albizu separately made a substantially similar
excited utterance to Officer Lord, and Collins did return to
resume the argument with a loaded shotgun.
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Sufficiency of the Evidence
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Collins argues that the government presented
insufficient evidence to convict him of being a felon in
possession of a firearm because he was a mere passenger in
the car in which the firearm was found. This argument is
without merit.
Our inquiry is whether there was evidence from
which a rational trier of fact could conclude that Collins
was guilty beyond a reasonable doubt. See United States v.
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Moreno, 991 F.2d 943, 944 (1st Cir. 1993), cert. denied, 114
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S. Ct. 457 (1994). Collins had a motive to possess the
firearm, he had just had an argument with Albizu in which he
had threatened to return and shoot Albizu, Collins did return
in a car with a loaded shotgun and extra ammunition,
Collins' friends moved the gun upon his gesture, the gun was
kept in the house where Collins lived, and when arrested,
Collins complained to the police that Albizu had guns too.
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The conviction is affirmed.
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