U.S. v. King

• Decision Date: 28 November 1989
• Docket Number: No. 87-1969,87-1969
• Citation: 897 F.2d 911
• Parties: 29 Fed. R. Evid. Serv. 1285 UNITED STATES of America, Plaintiff-Appellee, v. Charles KING, Defendant-Appellant. . Argues
• Court: U.S. Court of Appeals — Seventh Circuit

Page 911

897 F.2d 911

29 Fed. R. Evid. Serv. 1285

UNITED STATES of America, Plaintiff-Appellee, v. Charles KING, Defendant-Appellant.

No. 87-1969.

United States Court of Appeals, Seventh Circuit.

Argues Nov. 28, 1989.

Decided March 21, 1990.

Donna B. More, Anton R. Valukas, U.S. Atty., David J. Stetler, James R. Ferguson, Victoria J. Peters, Asst. U.S. Attys., Office of the U.S. Atty., Criminal Receiving, Appellate Div., Chicago, Ill., for U.S.

Jerry B. Kurz, Kathryn Hall, Hall & Kurz, Chicago, Ill., for Charles King.

Before WOOD, Jr., RIPPLE, and MANION, Circuit Judges.

MANION, Circuit Judge.

Charles King appeals his conviction for violating 18 U.S.C.App. Sec. 1202(a)(1), which prohibits felons from possessing firearms. King seeks a new trial based on the improper admission of prejudicial evidence. While we agree the district court committed error, we find the error harmless and therefore affirm.

I. BACKGROUND

On January 28, 1985, two undercover police officers in an unmarked squad car were patrolling a high-crime area of Chicago on the lookout for any narcotics activity or violent crime. The officers saw Charles King, whom they knew by sight, walking on the other side of the street, and pulled over to question him about an incident involving gunfire that occurred early that morning in a nearby bar.

King's hands were in his pockets. One of the officers, who was acquainted with King, called out to him. King turned and looked at the officer, then ran toward the entrance to a bar. The officers chased King on foot, and observed him remove a gun from his left-hand pocket just before entering the bar.

The officers followed King into the bar; both saw him discard the gun near a table. The bar owner, who also knew King, exchanged greetings with King while the owner's back was turned. The owner turned around in time to see the officers enter seconds later. He watched the officers frisk King, then noticed the gun lying on a chair near the front table. One of the officers retrieved the gun, a loaded .25 caliber automatic. The owner had never seen the gun before. The bar had just opened, and no other patrons had been in yet that day.

King was indicted for possessing a firearm while having three prior felony convictions, in violation of 18 U.S.C.App. Sec. 1202(a)(1). Before trial, King filed motions in limine seeking to prevent the jury from learning King had three prior felonies, and from learning the nature of those felonies, by stipulating to "a previous felony conviction." The court refused both motions, concluding that the three prior felonies were an element of the offense.

At trial the government introduced evidence of King's stipulation to the three prior felonies. King requested that introduction of this evidence be followed by a limited instruction warning the jury not to consider King's prior convictions as evidence of his bad character. The limiting instruction was refused after the government assured the court that the previous convictions would only be discussed as an element of the government's burden of proof, and not as evidence of King's bad character.

King submitted a proposed jury instruction that would have told the jury to not consider the prior felony convictions in determining whether King possessed the gun. The government argued that this instruction might confuse the jury. According to the government, prior felony convictions were an element of the offense that the government had to prove, yet King's proposed instruction seemed to be telling the jury to ignore those convictions. The district court agreed and rejected the instruction, again with the government's assurance that no argument would be made imputing bad character to King because of the convictions.

King was convicted and sentenced to 15 years in prison and fined $50. He appeals the district court's decision to allow his three prior convictions into evidence, its refusal to offer a limiting instruction, its rejection of his proposed jury instruction, and certain evidentiary rulings. King argues that these errors were extremely prejudicial and warrant a new trial. The government concedes error in proving the three prior convictions, but contends the error was harmless.

II. DISCUSSION

A. Evidence of Three Prior Convictions

The government admits it was error to include King's three prior convictions--one for burglary and two for robbery--in the indictment read to the jury. The government also concedes error in introducing evidence in the form of a stipulation that King had been convicted of felonies on three prior occasions. Evidence of one conviction was sufficient because King was willing to stipulate to that element of the offense. ¹ We have stressed on several recent occasions that indictments and evidence should not make the jury cognizant of any prior convictions beyond those necessary as an element of the offense. See United States v. Pirovolos, 844 F.2d 415, 420 (7th Cir.1988), cert. denied, --- U.S. ----, 109 S.Ct. 147, 102 L.Ed.2d 119 (1988) ("The trial judge should not have admitted evidence of Pirovolos's prior convictions; the defense's preferred stipulation that Pirovolos has been convicted of a prior felony was sufficient."); United States v. Lowe, 860 F.2d 1370, 1381-82 (7th Cir.1988) ("The danger inherent in submitting evidence of a defendant's prior convictions to a jury needs little explanation.... [A] jury may be willing to convict a defendant based on the inference that he or she was acting in conformity with past misconduct rather than upon the government's proof beyond a reasonable doubt....").

Accepting the government's confession of error, the next question is whether we can say "with fair assurance, after stripping the erroneous action from the whole, that the judgment was not substantially swayed by the error." Pirovolos, 844 F.2d at 421 (citations omitted). As we said in Pirovolos, we will reverse a conviction only if the error may have had a "substantial influence" on the verdict. Id.

The Pirovolos case presents facts similar to ours. Pirovolos was convicted under the same statute, and three prior felonies were unnecessarily proved. ² But this court found the error to be harmless for two reasons. First, telling the jurors Pirovolos had been convicted of three prior felonies was not that much more prejudicial than merely telling them he was a convicted felon. Second, the evidence of Pirovolos' guilt was substantial and largely uncontroverted, so that the jury's guilty verdict would likely have been the same even without the prejudicial information.

Employing the Pirovolos analysis, and comparing our facts to those in Pirovolos, we find the error here to be harmless as well. In Pirovolos, the jury was told of the defendant's three prior armed robbery convictions. Evidence of prior felony convictions for crimes involving use of a weapon tends to be more prejudicial to a jury deciding the guilt or innocence of a person accused of a weapons offense than evidence of crimes not involving use of a weapon. In our case, King's prior convictions did not involve use of a weapon; the jury was told King had been convicted of robbery twice and burglary once, as opposed to the armed robbery convictions in Pirovolos. So under the first prong of our analysis, which we will call the "degree of prejudice" test, we conclude consistently with Pirovolos that "the evidence of [King's] earlier convictions added very little to the case" against him. Pirovolos, 844 F.2d at 421. Also consistently with Pirovolos, the government did not "stray beyond merely establishing the convictions." Id. The government did not suggest that King's prior convictions showed a propensity to commit the crime with which he was charged, nor did it make any reference to the specifics of those crimes. The government merely established that he had been convicted of three prior felonies, and did so in the method it thought necessary to prove this crime. Indeed,...