U.S. v. Colston

Decision Date03 July 1991
Docket NumberNo. 90-1786,90-1786
Citation936 F.2d 312
PartiesUNITED STATES of America, Plaintiff-Appellee, v. Johnny Lester COLSTON, Defendant-Appellant.
CourtU.S. Court of Appeals — Seventh Circuit

Patrick S. Layng, Asst. U.S. Atty., Criminal Div., Barry R. Elden, Asst. U.S. Atty., Criminal Receiving, Appellate Div., Chicago, Ill., for plaintiff-appellee.

William H. Theis, Chicago, Ill., for defendant-appellant.

Before WOOD, Jr., and RIPPLE, Circuit Judges, and FAIRCHILD, Senior Circuit Judge.

FAIRCHILD, Senior Circuit Judge.

Johnny Lester Colson 1 was convicted of possession of a firearm by a convicted felon, 18 U.S.C. Sec. 922(g)(1), and sentenced to fifteen years incarceration. He appealed his conviction and his sentence.

FACTS

According to the evidence at trial, Johnny Colson and his brother, Kevin Colson, were selling jewelry out of their car at a gas station on October 10, 1988. Lee Skenadore, the government's key witness, and some of his friends purchased some jewelry from the Colsons, and they believed that the jewelry was real gold. The next day, October 11, a jeweler told them that it was not actual gold. That night, they again saw the Colsons at the gas station where they had purchased the jewelry. While Mr. Skenadore remained in the car, two of his friends approached the Colsons.

It seems clear that after a conversation a shot was fired at the gas station. Then the Colsons got in their car with Johnny driving and speedily drove north. Police officers who heard the shot came on the scene almost immediately and gave chase. They stopped the Colsons within three blocks, after they turned east on Dickens Street. The police found the gun which Johnny is charged with possessing on the floor near the gear shift between the driver's and passenger's seats.

Mr. Skenadore, aged seventeen, testified that while members of his group were talking with Kevin Colson, Johnny Colson went around the Colsons' white Datsun and got a gun out of its back seat. He never qualified or contradicted this portion of his testimony. Standing alone it would be adequate support for the finding that Johnny possessed the gun, whether or not the officers' later observation of the gun on the floor of Johnny's car and apparently within his reach would be sufficient. Problems of inconsistency in parts of Skenadore's testimony and earlier statements will be discussed in connection with Johnny's argument that he was entitled to a judgment of acquittal or, alternatively, a new trial.

The government also presented evidence to prove that Johnny Colson was a convicted felon and that the gun had traveled in interstate commerce. 2 The judge instructed the jury on theories of actual, constructive, and joint possession. The jury found the defendant guilty. The district court judge entered judgment on the verdict and sentenced the defendant to fifteen years imprisonment, the minimum under the statute for a defendant who has three prior convictions of violent felonies. 18 U.S.C. Sec. 924(e)(1). Defendant challenges two of the earlier convictions relied upon.

DISCUSSION

The defendant has presented five issues for review. Four of these concern Mr. Skenadore's testimony, and the fifth concerns sentencing.

First, the defendant argues that Mr. Skenadore's testimony was inherently incredible so there was insufficient evidence to sustain the guilty verdict. Mr. Skenadore gave several different versions of the events. On direct examination he testified that while his friends talked to Kevin Colson, the defendant got a gun out of his car and fired a shot. Then the Colsons got into their car and drove away, with the defendant driving. Two police officers arrived at the gas station about twenty seconds after the shot was fired. These police officers followed the defendant's car and stopped it on Dickens Street.

On cross examination, counsel for the defendant asked Mr. Skenadore if he had previously said that Kevin Colson was the one who shot the gun. Mr. Skenadore surprised both parties and answered that Kevin Colson did shoot the gun, but he shot it on Dickens Street after the defendant had fired the first shot and after they had left the gas station. Counsel for the defendant then asked Mr. Skenadore whether he had ever told the police or prosecutors about the second shot. Mr. Skenadore initially said he had not told anyone about the second shot before his testimony in court, but he later said he told the police about the second shot both when they arrested the Colsons and the day before trial. He added that at those times he told the police that the passenger, Kevin Colson, had also fired the first shot. Mr. Skenadore said he never told the prosecutors about the second shot, and he said he had previously told them that Kevin Colson fired the first shot. On recross examination, Mr. Skenadore explained that the only shot he ever told the prosecutors about was the second shot; he never told them about the shot at the gas station. Mr. Skenadore's testimony also contained other inconsistencies which are not directly relevant to this appeal.

Both police officers who arrested the Colsons testified that they heard only one shot and that shot came from the gas station. The chase by the police was short, and they were at all times close enough to the Colsons to hear a second shot. They said that Mr. Skenadore never told them about a second shot. An agent from the Bureau of Alcohol, Tobacco and Firearms testified that she had been with the prosecutors when they had interviewed Mr. Skenadore. She said Mr. Skenadore had told them about a shot fired at the gas station and had never said anything about a second shot.

All this may suggest that Skenadore remembered at the time of trial that the defendant fired the shot at the gas station and that when confronted with his earlier inconsistent statement that Kevin fired it he made an ill advised attempt at rehabilitation by fabricating a second shot, on Dickens Street, fired by Kevin. Then he found himself impelled to make inconsistent and contradicted claims about what he told the officers and agents.

According to the defendant, Mr. Skenadore's testimony requires reversal because a rational jury could not find a second shot was fired. Although the defendant's conviction does not depend on whether a second shot was fired, he argues that this testimony is inseparable from the testimony that he had possession of the gun.

This argument must fail because the jury could have believed Mr. Skenadore's testimony that the defendant took the gun out of the car, and thus had possession of it, without believing that two shots were fired. Generally, juries may reject parts of a witness's testimony while accepting other parts. United States v. Blasco, 581 F.2d 681, 685 & n. 10 (7th Cir.), cert. denied, 439 U.S. 966, 99 S.Ct. 456, 58 L.Ed.2d 425 (1978). The defendant, however, relies on United States v. Chancey, 715 F.2d 543 (11th Cir.1983), for the proposition that one part of a witness's testimony can render another part inherently incredible. In Chancey, a witness testified that she was forcibly taken from her home by the defendant and taken across the country, but she also testified that she did not take advantage of many opportunities to escape or to alert people that she was being kidnapped and that she voluntarily engaged in repeated sexual intercourse with the defendant. Id. at 544-46. Chancey is distinguishable from the instant case because in that case the facts described as to what occurred after the initial abduction "simply cannot pass muster in the reasonable mind that an individual is being detained and transported against his or her will." Id. at 547. In this case, Mr. Skenadore's testimony about a second shot is inconsistent with other evidence about a second shot, but one can easily believe that the defendant possessed a gun without believing that a second shot was fired or that the defendant fired the one at the gas station. Although Mr. Skenadore's testimony about the second shot and his statements to the police raise questions about his credibility, we will question a jury's credibility determinations only in exceptional circumstances. United States v. Dunigan, 884 F.2d 1010, 1013 (7th Cir.1989).

The defendant's second argument is that Mr. Skenadore's testimony was so thoroughly impeached that it was an abuse of discretion not to grant a new trial. This argument is closely related to the first, but in arguing for a new trial rather than a judgment of acquittal, the defendant focuses on the weight of Mr. Skenadore's impeached testimony rather than on inherent incredibility.

New trials based on the weight of the evidence should be granted only when the evidence is "heavily against the verdict," United States v. Reed, 875 F.2d 107, 113 (7th Cir.1989), and this is not such a case. A rational jury could have found that the defendant possessed the gun. Mr. Skenadore consistently stated that the defendant retrieved the gun from his car. Other evidence also supports this testimony. The police testified to hearing a gunshot, and within a minute of the shot Mr. Skenadore and his friends told the police that "they were just shot at by the white Datsun going north on Pulaski." When the police stopped the defendant's car, they recovered a gun which contained only one spent casing and four or five live ones. Furthermore, the jury could have relied on a constructive possession theory to convict the defendant regardless of whether he actually handled the gun himself. United States v. Garrett, 903 F.2d 1105, 1110-11 & n. 5 (7th Cir.), cert. denied, --- U.S. ----, 111 S.Ct. 272, 112 L.Ed.2d 227 (1990).

The third issue raised by the defendant is whether he was denied due process of law because the government relied on Mr. Skenadore's perjured testimony. The defendant admits that the government was surprised by Mr. Skenadore's testimony as much as the defense was, but the defendant...

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