U.S. v. Holmes

• Citation: 413 F.3d 770
• Decision Date: 07 July 2005
• Docket Number: No. 04-1007.,04-1007.
• Parties: UNITED STATES of America, Appellee, v. Xavier E. HOLMES Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (8th Circuit)

413 F.3d 770

UNITED STATES of America, Appellee, v. Xavier E. HOLMES Appellant.

No. 04-1007.

United States Court of Appeals, Eighth Circuit.

Submitted: May 11, 2004.

Filed: July 7, 2005.

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Stephen C. Moss, Attorney Federal Public Defender, argued, Kansas City, MO, for appellant.

Jess E. Michaelsen, Asst. U.S. Attorney, Kansas City, MO, for appellee.

Before MORRIS SHEPPARD ARNOLD, McMILLIAN, and MELLOY, Circuit Judges.

MELLOY, Circuit Judge.

Xavier Holmes appeals his conviction by a jury of being a felon in possession of a firearm that had traveled in interstate commerce, in violation of 18 U.S.C. § 922(g)(1). We reverse and remand for a new trial.

I.

Two police officers, Officer Snyder and Officer LeMoine, were dispatched to an apartment where Mr. Holmes and a gun were found after Brenda Williams (a sister of Mr. Holmes's girlfriend, Sheila Perry) called 911 and reported that there was a disturbance at the apartment involving a person armed with a gun. The door to the apartment was wide open when the officers arrived, and Brenda invited them inside. In addition to Brenda, Mr. Holmes and Ms. Perry were present in the apartment. The record is unclear as to what role, if any, Mr. Holmes played in the events leading to the 911 call.

According to both officers' testimony, Mr. Holmes backed away from them with his hands behind his back when they entered the apartment, and Officer Snyder asked him to show his hands, but Mr. Holmes did not initially do so. Officer Snyder testified that he followed Mr. Holmes around a counter, after which Mr. Holmes backed up to a wall and began to pull a hand from behind his back "as if he was picking something up from the back of his pants." Officer Snyder stated that he unholstered his gun in response to Mr. Holmes's actions, then began to point his gun at Mr. Holmes after observing that Mr. Holmes was holding a revolver. According to Officer Snyder, Mr. Holmes did not point the revolver at anyone, but rather "slid it down his leg," let go of it, and it hit the floor. Officer Snyder was then assisted by Officer LeMoine in handcuffing Mr. Holmes. Officer LeMoine testified that she never saw Mr. Holmes holding or dropping a gun, and that she was focused on trying to defuse the argument between the two women in the apartment, but that at some point after Officer Snyder asked Mr. Holmes to show his hands, she "heard a loud clunk like something had fallen onto the floor." The officers recovered the revolver from the floor after they detained Mr. Holmes.

Mr. Holmes's testimony provided an alternative explanation for how the gun got on the floor. He testified that Carolyn Williams (a sister of Brenda and Ms. Perry), who had resided at the apartment where Mr. Holmes and the gun were discovered, had been incarcerated and asked him in a phone call to "secure her furniture so nothing would happen to it." He explained that he had gone with Ms. Perry to Carolyn's apartment to retrieve the belongings, that Brenda was at the apartment when they arrived, and that Ms. Perry and Brenda got into an argument. He stated that after carrying a television set from the apartment to the car, he noticed police officers approaching the apartment complex, and he went back into the apartment to "get out of their way," as he had "been drinking that day" and "didn't want them to smell it on [his] breath" because he was on probation. Mr. Holmes testified that after he walked back into the apartment and was waiting for Ms. Perry to tell him what she wanted to move next, "the next thing I know the police were there and I saw a gun laying on the counter," and "I panicked and pushed it over the counter" because "I'm on probation" and "I'm not supposed to be around guns." He testified that he had "no idea" who owned the gun, and that the moment at which the police officers arrived was the "first time I ever saw" the gun. Both officers testified that they did not see the gun on the counter or see Mr. Holmes's hand making a motion towards the counter.

II.

At trial, Mr. Holmes attempted to offer the testimony of Carolyn and two other witnesses whom he had subpoenaed, but the district court refused to allow them to testify, concluding that their testimony would be irrelevant. Prior to the close of his defense, Mr. Holmes asked the court to reconsider admitting the testimony of the three witnesses, but the court again declined to permit the testimony. Mr. Holmes contends that the exclusion of this testimony was erroneous and violated his due process right to present a defense. At trial, Mr. Holmes made offers of proof as to what the witnesses would have said: Carolyn would have testified that she was the leaseholder of the apartment, that her lease had expired, and that she had contacted Mr. Holmes about retrieving her property from the apartment; the apartment's landlord would have testified that Carolyn and her son had lived there and that their lease had ended shortly before the day of Mr. Holmes's arrest; and Carolyn's son would have testified that he was in the process of moving out of the apartment on the day that Mr. Holmes was arrested. Mr. Holmes maintained that he was offering the testimony to show "why he was there, what he was doing, how he came to be there." The district court, however, responded that "[u]nless one of them is going to say they put the gun on the counter, it's not relevant to this proceeding."

The district court's only stated rationale for excluding the testimony was that it was not relevant. We agree with Mr. Holmes that this was an improper basis for excluding the testimony. The excluded testimony was relevant because it provided background and contextual information that would have been useful in assessing the relative credibility of the officers' and Mr. Holmes's testimony. Cf. Old Chief v. United States, 519 U.S. 172, 186-89, 117 S.Ct. 644, 136 L.Ed.2d 574 (1997); United States v. DeAngelo, 13 F.3d 1228, 1232 (8th Cir.1994), cert. denied, 512 U.S. 1224, 114 S.Ct. 2717, 129 L.Ed.2d 842 (1994). Evidence is relevant so long as it has "any tendency," however slight, "to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence." Fed. R.Evid. 401; see United States v. Casares-Cardenas, 14 F.3d 1283, 1287 (8th Cir.1994), cert. denied, 513 U.S. 849, 115 S.Ct. 147, 130 L.Ed.2d 86 (1994). The threshold for relevance is "quite minimal." United States v. Guerrero-Cortez, 110 F.3d 647, 652 (8th Cir.1997), cert. denied, 522 U.S. 1017, 118 S.Ct. 604, 139 L.Ed.2d 492 (1997). All relevant evidence is admissible, except as otherwise provided by the Constitution, legislation, or applicable evidentiary rules, and conversely, all irrelevant evidence is inadmissible. See Fed. R.Evid. 402.

The only disputed issue of material fact at trial was whether Mr. Holmes had knowingly possessed the firearm that the police officers recovered from the apartment. (The parties stipulated that Mr. Holmes was a convicted felon as of the date in question and that the gun had been transported in interstate commerce.) The jury was presented with two inconsistent accounts of how the events surrounding Mr. Holmes's arrest and the recovery of the gun unfolded. The government's theory that Mr. Holmes retrieved the gun from the back of his pants was supported by Officer Snyder's testimony that he had observed Mr. Holmes holding and dropping the gun that was found on the floor, and both officers' testimony that they had not observed a gun on the counter or Mr. Holmes's hand moving toward the counter. The jury had to determine whether this was sufficient to prove beyond a reasonable doubt that Mr. Holmes had possessed the firearm despite Mr. Holmes's testimony to the contrary that he had merely pushed it from the counter upon observing it.

The evidence proffered by Mr. Holmes was relevant because it would have made his explanation of how the gun came to be on the ground—that another person had placed it on the kitchen counter, and that he had pushed it away from him as the police entered the apartment—somewhat more plausible than it was without the evidence. Consequently, the evidence would have been of some value to Mr. Holmes in his efforts to create a reasonable doubt in the jurors' minds that he had possessed the gun. It would have corroborated his contention that he was present in the apartment to help the people who had lived there move, and it might have increased the probability that the apartment was in a state of disarray, that a firearm normally stored elsewhere had been left by somebody on the counter during the moving process, and that, as a guest in the apartment, he was surprised to discover the gun on the counter when the police arrived. It might also have tended to decrease the probability that he was personally armed by demonstrating that he was at the apartment for a legitimate nonviolent purpose rather than to pursue some nefarious goal.

"[T]he Constitution guarantees criminal defendants a meaningful opportunity to present a complete defense," which includes the right to present testimony of witnesses that is material and favorable to their defense and complies with the rules of evidence. See Crane v. Kentucky, 476 U.S. 683, 690-91, 106 S.Ct. 2142, 90 L.Ed.2d 636 (1986) (internal quotations omitted); see also United States v. Turning Bear, 357 F.3d 730, 733 (8th Cir.2004). The testimony of these witnesses is relevant and therefore a part of Mr. Holmes's complete defense. Because we determine below that a retrial is necessary, we need not consider whether the exclusion of testimony was harmless. On retrial, these contested witnesses may offer their testimony.

III.

Mr. Holmes urges us to hold that improper comments made by the government during closing arguments deprived him of his fifth amendment right to a fair trial. The district court has broad discretion in controlling...