U.S. v. Collins

• Citation: 321 F.3d 691
• Decision Date: 03 March 2003
• Docket Number: No. 02-1677.,02-1677.
• Parties: UNITED STATES of America, Appellee, v. Bobby Marvin COLLINS, Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (8th Circuit)

Page 691

321 F.3d 691

UNITED STATES of America, Appellee, v. Bobby Marvin COLLINS, Appellant.

No. 02-1677.

United States Court of Appeals, Eighth Circuit.

Submitted: December 10, 2002.

Filed: March 3, 2003.

Richard S. Virnig, argued, Minneapolis, MN, for appellant.

Joseph T. Dixon, argued, Minneapolis, MN, for appellee.

Before WOLLMAN, JOHN R. GIBSON, and MELLOY, Circuit Judges.

WOLLMAN, Circuit Judge.

Bobby Marvin Collins was convicted of possession of ammunition by a felon in violation of 18 U.S.C. §§ 922(g)(1) and 924(e) and was sentenced to 235 months' imprisonment. Collins contends on appeal that the district court¹ erred by denying his motion to suppress, limiting his cross-examination of a witness to non-leading questions, and refusing to reopen his case to allow a subpoenaed defense witness to testify. Collins also contends that the district court improperly relied on a prior discharged state court conviction to enhance his sentence and that his 235-month sentence for "mere possession of ammunition" violates the Eighth Amendment. We affirm.

I. Background

During the early morning hours of July 9, 2001, two Minneapolis police officers responded to a report of "shots fired" near the intersection of 21st Avenue North and Oliver Avenue North. As the officers approached the area, they saw a Chevrolet Caprice parked on the north side of 21st Avenue and drove slowly past it. Officer Jeffrey Mercill observed three individuals in the car: the driver, Collins, and a front seat passenger, both of whom were slumped over, and a female passenger in the back seat. Advising his partner to pull over, Officer Mercill directed a spotlight on the Caprice.

Officer Mercill approached the driver's side of the Caprice with his gun drawn. The driver's side window was down. Officer Mercill asked the backseat passenger, Erika Hawkins, whether anyone in the vehicle had been shot. Hawkins responded that no one had been shot and that Collins and Deon Mallet, the front-seat passenger, were sleeping. Officer Mercill shouted repeatedly at Collins and Mallet, asking whether they had been shot, but neither one responded. Officer Mercill then leaned into the vehicle through the open window "to see if [he] could tell if it maybe was a crime scene or if [Collins] had been shot." Upon doing so, Officer Mercill observed a black-handled handgun sticking out of Collins' left back pocket,² and he reached in to seize the gun. Collins was subsequently awakened and taken into custody.

The gun seized from Collins was loaded with six rounds of .32 caliber ammunition. After examining the firearm, Bureau of Alcohol, Tobacco and Firearms Agent James Mazzon concluded that it was a .32 caliber Forehand and Wadsworth revolver. Mazzon opined that the gun was manufactured sometime between 1890 and 1905, but could not determine the exact year. A firearm manufactured in or before 1898 is deemed an antique and is not subject to federal firearm laws. 18 U.S.C. § 921(a)(3), (16).

Collins moved to suppress the evidence obtained from the stop. The magistrate judge³ recommended that this motion be denied, concluding that the evidence was admissible under the plain view doctrine. Collins also moved to dismiss the indictment, or, in the alternative, to strike surplusage from the indictment, arguing that one of the prior convictions listed in the indictment could not be used for purposes of enhancing his sentence under 18 U.S.C. § 924(e). The magistrate judge recommended that this motion also be denied. Collins did not object to the magistrate judge's report and recommendation, and the district court adopted it.

At trial, the government called Erika Hawkins as a witness. During cross-examination, the court instructed Collins' counsel to avoid leading questions, stating that "as a practical matter," Hawkins was a defense witness. Collins' counsel objected and later moved for a mistrial on the ground that the court's ruling constituted an improper restriction on the right to confront an adverse witness. The court overruled the objection and denied the motion for a mistrial.

Collins subpoenaed Deon Mallet for trial. Mallet, however, failed to appear at the appointed time, and the district court issued a bench warrant for his arrest. After the government rested, the court advised Collins that the trial could be continued to the following day to see if Mallet could be located. Collins chose to proceed with the trial. Later that afternoon, after closing arguments had been completed and the jury had been instructed, Mallet entered the courtroom. Collins then moved to reopen the evidence to present Mallet's testimony. The court denied the motion, noting that Collins had declined the court's offer to continue the trial.

The jury found Collins guilty of possession of ammunition by a felon. Based on his three prior convictions for violent felonies, Collins was subject to an enhanced sentence pursuant to 18 U.S.C. § 924(e) and U.S.S.G. § 4B1.4. The district court sentenced Collins to 235 months' imprisonment, the bottom of the guideline range.

II. Analysis

A. Fourth Amendment Claim

Collins contends that the district court erred by concluding that the evidence seized from him was admissible under the plain view doctrine. Because Collins failed to object to the magistrate judge's report and recommendation, "the factual conclusions underlying [the] defendant's appeal are reviewed for plain error." United States v. Looking, 156 F.3d 803, 809 (8th Cir.1998) (citations omitted). "[We] review de novo the ultimate question of whether the Fourth Amendment has been violated." United States v. Neumann, 183 F.3d 753, 755 (8th Cir.1999) (citation omitted).

Under the plain view doctrine, police may seize an object without a warrant if "(1) the officer did not violate the Fourth Amendment in arriving at the place from which the evidence could be plainly viewed, (2) the object's incriminating character is immediately apparent, and (3) the officer has a lawful right of access to the object itself." United States v. Hatten, 68 F.3d 257, 260 (8th Cir.1995) (internal quotation marks and citations omitted). Collins challenges the government's evidence with respect to the doctrine's first requirement of "prior justification." See id. Although conceding that "[w]hen the officers approached the vehicle, they clearly had the right to investigate the situation," Collins argues that Officer Mercill had no basis for continuing the investigation once Hawkins advised him that none of the occupants had been injured. Thus, Collins concludes, Officer Mercill's act of leaning into the vehicle constituted an unreasonable search. We disagree.

"Exigent circumstances may provide a basis for a warrantless entry." United States v. Clement, 854 F.2d 1116, 1119 (8th Cir.1988). "One exigent circumstance that may justify entry without a warrant is when the police `reasonably believe that a person within is in need of immediate aid.'" United States v. Selberg, 630 F.2d 1292, 1295 (8th Cir.1980) (quoting Mincey v. Arizona, 437 U.S. 385, 392, 98 S.Ct. 2408, 57 L.Ed.2d 290 (1978)); Mincey, 437 U.S. at 392, 98 S.Ct. 2408 ("We do not question the right of the police to respond to emergency situations."); see also United States v. Cervantes, 219 F.3d 882, 889 (9th Cir.2000) (finding justification for adopting the emergency doctrine ... "in [police officers'] community caretaking function to respond to emergency situations" (citation omitted)). Officer Mercill and his partner were responding to a "shots fired" call when they came upon the Caprice. The vehicle was parked near the area where shots reportedly were heard, and the officers observed two men slumped over in the front seat. Under such circumstances, it was entirely reasonable for Officer Mercill to lean into the vehicle to confirm that the men were not injured. See Mincey, 437 U.S. at 392-393, 98 S.Ct. 2408; see also United States v. Haley, 581 F.2d 723, 724-26 (8th Cir.1978) (concluding that where the officer observed defendant lying on the street and reasonably believed defendant was in need of immediate assistance but could not find any identification on defendant's person, the officer's search of defendant's briefcase for identification was justified by exigent circumstances). Indeed, for the officers to have accepted Hawkins' explanation as true (i.e., that Collins and Mallet were merely sleeping), as Collins argues they should have done, would have been irresponsible and, quite possibly, a basis for civil liability had the individuals in fact been injured. Thus, assuming that Officer Mercill's act of leaning into the vehicle constituted a search, we conclude that exigent circumstances justified this warrantless entry and that the gun was lawfully seized under the plain view doctrine. Mincey, 437 U.S. at 393, 98 S.Ct. 2408 ("[T]he police may seize any evidence that is in plain view during the course of their legitimate emergency activities."); Hatten, 68 F.3d at 261 (recognizing that "[h]idden guns, even badly hidden guns, are by their nature incriminating," and concluding that the warrantless seizure of a gun from defendant's car was justified under the plain view doctrine).⁴

B. Trial Claims

Collins contends that the district court erred by refusing to allow him to cross-examine Erika Hawkins. We agree with the government, however, that Collins has mistakenly equated his right to confront and cross-examine witnesses with a right to employ leading questions. Despite Collins' suggestion to the contrary, this is not a case in which the trial court prohibited all inquiry into a particular issue. See, e.g., Delaware v. Van Arsdall, 475 U.S. 673, 679, 106 S.Ct. 1431, 89 L.Ed.2d 674 (1986); see also Davis v. Alaska, 415 U.S. 308, 310-311, 318, 94 S.Ct. 1105, 39 L.Ed.2d 347 (1974) (noting that although defense counsel was permitted to ask key prosecution witness whether he was biased, defense counsel was "unable to make a record from which to argue w...