U.S. v. Davis, 90-5436

• Decision Date: 05 August 1991
• Docket Number: No. 90-5436,90-5436
• Citation: 936 F.2d 352
• Parties: UNITED STATES of America, Appellee, v. Alfred Muldrow DAVIS, Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 352

936 F.2d 352

UNITED STATES of America, Appellee, v. Alfred Muldrow DAVIS, Appellant.

No. 90-5436.

United States Court of Appeals, Eighth Circuit.

Submitted Feb. 13, 1991.

Decided June 11, 1991.

Rehearing and Rehearing En Banc

Denied Aug. 5, 1991.

Scott F. Tilsen, Minneapolis, Minn., for appellant.

Andrew S. Dunne, Minneapolis, Minn., for appellee.

Before BOWMAN, MAGILL, and LOKEN, Circuit Judges.

BOWMAN, Circuit Judge.

Alfred Davis was convicted in District Court ¹ of being a felon in possession of a firearm in violation of 18 U.S.C. Sec. 922(g)(1) (1988). He was sentenced to the fifteen-year mandatory minimum sentence provided by 18 U.S.C. Sec. 924(e)(1) (1988). He appeals both his conviction and his sentence. We affirm.

I.

On Friday, October 27, 1989, officers from the Hennepin County Sheriff's Department and the Bloomington Police Department executed a search warrant on a one-bedroom apartment in Bloomington, Minnesota occupied by Davis. ² Upon entering the apartment, the officers found Shari Gynild sleeping on a couch in the living room. Deputy Craig Opsahl went to the bedroom and found Davis lying on the bed. Opsahl instructed Davis to raise his hands and identify himself, which Davis did. By this time, Deputy John Cich had entered the bedroom. While questioning Davis, the officers retrieved a .22 caliber handgun from a dresser drawer in the bedroom. Cich then placed Davis under arrest for a weapons violation. After searching the apartment and vehicles registered to Davis, the officers took Davis to the county jail, where he remained through the weekend. ³ Gynild was not arrested and was allowed to stay in the apartment.

Davis was interviewed by Deputy Cich on Monday, October 30. With no one else present, Cich read Davis his Miranda rights and then began questioning him. Cich asked Davis if he lived in the apartment, and Davis replied that he lived there with his girlfriend. When asked about the gun in the apartment, Davis said that it was his but that he had not bought it. Davis then told Cich that he was having trouble contacting his attorney and asked Cich for assistance. Cich asked Davis if he was requesting to have a lawyer present during questioning. The defendant replied that he was and Cich ended the interview. Davis was released from jail shortly thereafter and later was arrested in April 1990 on the federal firearms charge.

At Davis's trial, Jo Ellen Barnes, an acquaintance of Davis, testified that the apartment that had been searched was rented in her name. She said she did this as a favor to Davis, although she did not live there, and that Davis lived there with his girlfriend. Barnes further testified that Davis talked to her while in jail in October 1989 and told her a gun had been found in the apartment, that she told him she did not know there was a gun in the apartment, and that Davis responded that he was not supposed to have a gun. She also testified that in April 1990, following Davis's arrest, Davis telephoned her and asked her to take responsibility for the gun, and that she declined to do so. She said that Davis told her he would pay $1,500 to her or anybody else who would claim the gun, that she refused the offer, and that Davis again called her before the trial and told her not to say anything about the gun.

Deputy Cich also testified at the trial, limiting his testimony to the October 27 search and the October 30 interview. ⁴ Davis then took the witness stand and denied any knowledge about the gun. He claimed that the first time he saw the gun was when the officers found it on October 27. Davis denied living at the apartment, and claimed that he only visited there occasionally. Davis denied making any statements about the gun to Deputy Cich on either October 27 or October 30. He also denied talking to Barnes about the gun and denied offering her money to claim the gun.

As a rebuttal witness, the government called Shari Gynild. She testified that she had stayed at the apartment occasionally for about a month prior to the search. She stated that she had seen the gun one week before the search and asked Davis about it. She testified that he told her it was his gun. Over objection from the defense, Gynild testified that on the day after the search, two of Davis's friends talked to her on the phone about the gun, but that she refused to take responsibility for the gun.

The jury found Davis guilty of violating 18 U.S.C. Sec. 922(g)(1). Prior to sentencing, Davis contended that his 1971 state burglary conviction, with respect to which he had been restored, by operation of Minnesota law, to his full civil liberties, should not be used to enhance his sentence pursuant to 18 U.S.C. Sec. 924(e)(1). The District Court ruled that the 1971 conviction should be counted as a prior violent felony; coupling that conviction with Davis's 1979 and 1988 felony convictions, the District Court sentenced Davis to fifteen years' imprisonment pursuant to section 924(e)(1).

On appeal, Davis raises three issues: (1) the District Court erroneously admitted Gynild's testimony concerning her telephone conversation with Davis's friends; (2) the District Court erred by failing to give the jury a specific instruction to consider the voluntariness of Davis's October 30 statements to Deputy Cich; and (3) the District Court erroneously imposed the fifteen-year mandatory minimum enhancement provision under section 924(e)(1).

II.

Davis claims that the District Court erred by allowing Shari Gynild to testify about a telephone conversation she had with two people whom she identified as friends of Davis. The gist of her testimony was that these two friends asked Gynild to claim responsibility for the handgun found in Davis's bedroom and that she refused to do so. Davis claims that Gynild's testimony about what the two people asked her to do is hearsay and that the admission of it constitutes reversible error.

Assuming arguendo that this testimony was inadmissible hearsay, we are satisfied that its introduction was harmless error. See Fed.R.Crim.P. 52(a). Only if the jury may have been "substantially swayed" by improperly-admitted evidence must we reverse the conviction. United States v. Whalen, 844 F.2d 529, 534 (8th Cir.1988). Our review of the record in this case convinces us that the admission of Gynild's testimony about the telephone conversation was harmless error at most.

The handgun was found in the bedroom of the apartment where Davis was found. Although Davis claimed that he did not live there, the police found numerous receipts and personal property belonging to Davis in the apartment. The articles of clothing in the drawer where the gun was found belonged to Davis. Gynild testified that she had seen the gun in the dresser drawer shortly before the search, and had been told by Davis that it was his gun. Davis admitted to Deputy Cich in the October 30 interview that the gun belonged to him. Jo Ellen Barnes testified that Davis lived at the apartment. She testified that Davis told her that the gun was his and that Davis tried to get Barnes to claim responsibility for the gun by offering her money. Even if it was error to admit Gynild's testimony concerning the phone conversation, in light of the overwhelming amount of other evidence that Davis possessed the handgun the admission of this testimony was harmless beyond a reasonable doubt. See United States v. Battle, 859 F.2d 56, 58-59 (8th Cir.1988).

III.

Davis claims that the District Court erred by failing specifically to instruct the jury to consider the voluntariness of Davis's statements made to Deputy Cich on October 30. The instruction given by the District Court reads as follows:

You heard testimony that the defendant made a statement to Hennepin County Sheriff Deputy John Cich. It is for you to decide whether the defendant made that statement, and, if so, how much weight you should give to it.

In making these decisions, you should consider all of the evidence, including the circumstances under which the statements have been made.

Trial Transcript, vol. II at 239. This instruction tracks almost identically Eighth Circuit Model Instruction 2.07. See Manual of Model Criminal Jury Instructions For The District Courts Of The Eighth Circuit 28 (rev. ed.1989). Under 18 U.S.C. Sec. 3501(a) (1988), the trial judge is required to determine a confession's voluntariness before admitting it into evidence, and then to allow evidence on the issue of voluntariness. Section 3501(a) also requires the trial judge to "instruct the jury to give such weight to the confession as the jury feels it deserves under all the circumstances." The contested instruction satisfied this mandate, and was proper.

IV.

Finally, Davis claims that the District Court erred by imposing the mandatory minimum fifteen-year sentence under 18 U.S.C. Sec. 924(e)(1). Davis was convicted of violating 18 U.S.C. Sec. 922(g)(1), which provides that it is unlawful for anyone who has been convicted of a crime punishable by imprisonment exceeding one year to ship, transport, receive, or possess in interstate commerce any firearm or ammunition. Section 924(e)(1) says that anyone who violates section 922(g) and has three previous convictions for a violent felony or a serious drug offense shall be imprisoned for not less than fifteen years. At Davis's sentencing, the District Court ruled that he had three previous convictions for a violent felony or a serious drug offense--a 1971 Minnesota burglary conviction, a 1979 Minnesota terroristic threat conviction, and a 1988 Minnesota cocaine possession conviction. Davis argues that his 1971 burglary conviction should not be considered a previous conviction for a violent felony because his civil rights were fully restored by operation of Minnesota law upon the completion of his sentence and his consequent discharge in 1976 from the custody of the state.

For the purposes of section 924(e)(1), a violent felony is defined as "any crime...