U.S. v. Davis, 85-4450
| Citation | 792 F.2d 1299 |
| Decision Date | 22 April 1986 |
| Docket Number | No. 85-4450,85-4450 |
| Parties | 20 Fed. R. Evid. Serv. 762 UNITED STATES of America, Plaintiff-Appellee, v. Ronald Wayne DAVIS, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Fifth Circuit |
Robert B. McDuff, University, Miss., for defendant-appellant.
Glen H. Davidson, U.S. Atty., John M. Alexander, Asst. U.S. Atty., Oxford, Miss., for plaintiff-appellee.
Appeal from the United States District Court for the Northern District of Mississippi.
Before GEE and GARWOOD, Circuit Judges, and HINOJOSA, District Judge. *
Appellant Ronald Wayne Davis appeals his conviction of possessing firearms in interstate commerce after having been convicted of a felony in violation of 18 U.S.C.App. Sec. 1202(a)(1). We had previously reversed a pretrial order suppressing the firearms on the ground that Davis' consent to the search which produced them had been procured by deceit. United States v. Davis, 749 F.2d 292 (5th Cir.1985). Davis now claims his conviction should be reversed because of diverse asserted trial errors. We affirm.
In May 1982, Agent Don Medley of the Federal Bureau of Alcohol, Tobacco and Firearms received a report of a person carrying an illegal machine gun in Panola County, Mississippi. Agent Medley, assisted by Panola County Deputy Sheriff Bill Joiner, interviewed Billy Woods (appellant's uncle) and later Mr. Woods' wife about the machine gun. After the interview with Mrs. Woods, the officers decided to question the Woodses' nephew appellant Davis who, with his wife Celeste, was in town visiting his mother and stepfather. Before speaking to Davis, Agent Medley learned that Davis had a 1980 felony conviction for possession of marihuana for which Davis had received a three-year suspended sentence. Agent Medley knew that it was illegal for Davis, as a convicted felon, to possess any firearm in interstate commerce.
On May 5, 1982, Agent Medley and Deputy Joiner found Davis at the Panola County home of his mother and stepfather. After conversing briefly with the law enforcement officers, Davis reportedly asked the officers to step inside the house so that they could see his firearms. Davis thought that if he proved to Medley and Joiner that he did not possess or have knowledge of a machine gun, he would clear himself of suspicion. After Davis displayed two pistols, two shotguns and three rifles, none fully automatic, Agent Medley told him that it was illegal for him to possess firearms. Davis was then read his Miranda rights. Davis signed a form abandoning the guns to the officers.
Davis was subsequently indicted on May 27, 1983 for possession in interstate commerce of these seven firearms, each described by make, model, and serial number, after having been convicted of a felony, a violation of 18 U.S.C.App. Sec. 1202(a)(1). The offense was alleged to have been committed "on or about May 5, 1982, in the Northern District of Mississippi."
The indictment was originally dismissed after the district court, Judge Keady, granted a pretrial motion to suppress, finding that the discovery of the guns resulted from a warrantless search, Davis' consent to which had been obtained by deceit. Although this motion to suppress, and the hearing on it, extended to statements made by Davis prior to being warned under Miranda, as well as to the firearms themselves and the legality of the search, Judge Keady ruled only on the search and firearms suppression issues. As noted, we reversed, holding that the search was validly consented to and that Davis freely and voluntarily produced the guns. United States v. Davis, supra. Thereafter, the case was transferred to Judge Biggers for trial.
Davis then filed a motion to suppress, essentially renewing the unruled on portion of the earlier motion seeking suppression of all his statements made to the law enforcement officers prior to being informed of his Miranda rights. An evidentiary hearing was requested, but none was held. Prior to the government's opening statement, defense counsel approached the bench to raise these issues. Judge Biggers denied the motion without holding an evidentiary hearing.
The government's primary witness at trial was Agent Medley, who testified about defendant's display of the seven firearms at the house on May 5, 1982 and his statements to the officers. These firearms were put in evidence. The records of Davis' April 1980 felony conviction were also introduced. The government called Officer Anderson of the Houston Police Department (HPD), who testified that on January 7, 1982, in Houston, he had taken two of these seven firearms from Davis. On rebuttal, Anderson further testified that the two firearms were released from the HPD property room on March 29, 1982.
The defense theory of the case, as reflected by defense counsel's statements to the jury panel on voire dire and, with greater specificity, in counsel's opening statement to the jury prior to the introduction of any evidence, was that although Davis, whose 1980 conviction counsel admitted, had indeed brought the firearms from Texas to Panola County, Mississippi "around late 1981, early 1982," nevertheless, on May 5, 1982, Davis did not own or possess the guns, because he "had given the guns several months earlier to his step-father," and Davis was not living with his mother and step-father in May 1982, but was simply there on a brief visit. Davis testified in his own defense, generally as outlined in his counsel's opening statement. On direct examination, he acknowledged his 1980 conviction, and testified that he had owned these guns while he was in Texas and brought them with him when he and his wife traveled from Texas to Panola County, Mississippi during the second week of February 1982, making a complete and permanent gift of them to his stepfather when he arrived. He also stated that he and his wife then left Panola County and did not return until late April 1982, when they came back for a visit. The defense also called Davis' wife, mother, and stepfather, who gave testimony generally to like effect, although being somewhat less precise about when Davis came with the guns. The stepfather's testimony in this respect was particularly vague. In sum, Davis judicially admitted possessing the particular guns in question in interstate commerce in the Northern District of Mississippi after he had been convicted of a felony, contrary to section 1202(a)(1), but asserted that the offense was committed in mid-February 1982, not "on or about May 5, 1982," as charged in the indictment. 1
The jury found Davis guilty, and he was sentenced to two years in prison. This appeal follows.
Davis first contends that government witness HPD Officer Anderson was allowed to give rebuttal testimony not adequately shown to be within his own personal knowledge, as required by Fed.R.Evid. (Rule) 602. 2 Officer Anderson had testified on the government's case in chief that he had taken two of the guns in question from Davis on January 7, 1982 in Houston; he identified the marks he had placed on the guns at that time, identified Davis and stated that he had "tag[ged]" the guns "into the police property room." On cross-examination, he testified he was then a "uniform patrolman" and "not involved with the Narcotics Bureau full time." Anderson's presently challenged testimony came when he was recalled by the government as a rebuttal witness, and the following transpired:
Davis' counsel then cross-examined Anderson, asking him "do you have any records with you showing when those weapons were released," to which Anderson answered that he had "a copy of the release form." Anderson replied in the negative when asked if he was "the custodian of these records" and if Davis' name appeared "on this form." Nothing was elicited on defense counsel's cross-examination indicating that Anderson did not have personal knowledge of when the guns were released, or that his testimony was based even partly on the form. Defense counsel then renewed his objection that Anderson's testimony was hearsay. The court overruled the objection. The government then established by questioning of Anderson that the form contained a description and serial numbers which matched those of the pistols introduced in evidence. The form was never offered in evidence.
Rule 602 clearly places on the proponent of the testimony the initial burden of showing that it represents the witness' personal knowledge. This is the general common law rule. See, e.g., 2 Wigmore, Evidence Sec. 654 at 883 (Chadbourn Rev.1979); McCormick, Evidence Sec. 10 at 24 (3d ed. 1984). The question, then, is whether the government sufficiently met this initial burden. The district court, which doubtless has at least some discretion in determining such matters, 3 ruled that it did. While the...
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