U.S. v. Powell, 94-1487
| Decision Date | 08 February 1995 |
| Docket Number | No. 94-1487,94-1487 |
| Citation | 50 F.3d 94 |
| Parties | 41 Fed. R. Evid. Serv. 1092 UNITED STATES, Appellee, v. Charles POWELL, Defendant, Appellant. . Heard |
| Court | U.S. Court of Appeals — First Circuit |
Elizabeth A. Lunt, with whom Zalkind, Rodriguez, Lunt & Duncan, Boston, MA, were on brief, for appellant.
Ralph F. Boyd, Jr., Asst. U.S. Atty., with whom Donald K. Stern, U.S. Atty., and Kevin J. Cloherty, Asst. U.S. Atty., Boston, MA, were on brief, for appellee.
Before CYR, Circuit Judge, BOWNES, Senior Circuit Judge, and BOUDIN, Circuit Judge.
Following a five-day jury trial, defendant-appellant Charles Powell was convicted of being a felon in possession of a firearm. 18 U.S.C. Sec. 922(g)(1). He was then sentenced to the statutory maximum of 120 months' imprisonment. Powell challenges his conviction and sentence on a variety of grounds. After carefully reading the record and considering Powell's arguments, we affirm.
At shortly after 2:00 p.m. on October 7, 1992, Powell was standing outside of his truck. He was holding food and conversing with Arvetta Boykins--his girlfriend--and Boykins' mother as the two women sat in the truck. The truck was parked on Boston's Humboldt Avenue near its intersection with Ruthven Street and across from Humboldt Liquors. As this conversation was taking place, a grayish-silver Subaru drove slowly down Ruthven and turned onto Humboldt. There were four young men in the Subaru, each of whom was wearing a hooded sweatshirt with the hood pulled up.
As the Subaru proceeded down Humboldt, the men in the car yelled something to a couple of young men--Chris Cheney and Ernest Rhodes--who were standing out on Humboldt. Either Rhodes or Cheney yelled back. After this exchange, the driver of the Subaru put the car in reverse and accelerated quickly, making a loud screeching sound. Observing this, Powell handed his food to his girlfriend's mother and told the two women to "get out of here." Knowing that trouble was brewing, they quickly complied by driving off. Powell then ran up Ruthven.
By about 2:30 p.m., Powell had returned to Humboldt Avenue and was talking with Cheney and Rhodes in front of Humboldt Liquors. Around this same time, Stanley Owens came around the corner of Ruthven and Humboldt on a mountain bike. He had his hand in his jacket pocket and was leaning to his left. At least one other youth also came on the scene simultaneously. At some point, gunfire erupted. The gunfire, which came from at least three guns, was continuous and lasted six or more seconds. Three persons, including Powell, were wounded in the shoot-out; Owens was killed. Cheney and Rhodes escaped injury by taking cover inside of Humboldt Liquors. Within an hour of the shooting, Powell was arrested. At the time of his arrest, Powell was standing in an alley not far from the intersection of Ruthven and Humboldt, and was holding a .44 Charter Arms Bulldog handgun. He also had a walking cane with him. It was subsequently determined that a bullet from the .44 had killed Owens. Powell does not dispute that he fired two shots with the .44 during the shoot-out.
At trial, the government argued that Powell shot Owens with a gun he had brought to the crime scene. Powell consistently denied this, asserting as an affirmative defense that he took possession of the .44 only out of necessity in the midst of the shoot-out. When he was in an ambulance after the shooting, Powell told an arresting officer that the youths in the gray Subaru had started shooting from the car, that a light-skinned black male had alighted and continued the shooting, that he (Powell) ran towards this shooter, and that the shooter then lost control of the weapon, dropped it to the ground, and jumped back into the Subaru, which sped off. Powell stated that he picked up the gun and ran to the alley in which he was arrested. He did not mention firing the weapon at anyone.
To clarify how the shooter lost control of the weapon, the officer asked Powell to repeat his story. At this point, Powell told the officer that the light-skinned male got out of the Subaru, began the shooting, and fled on foot. He did not mention the shooter dropping or losing control of his weapon. When the officer asked how the weapon ended upon the ground, Powell did not answer.
At trial, Powell had a third account of what had happened. Powell testified that he heard shots ring out as he stood in front of Humboldt Liquors talking with Cheney and Rhodes. While Cheney and Rhodes sought refuge inside the store, Powell began running up the street towards the intersection of Humboldt and Ruthven. Just then, a man who was pulling a gun out of his pocket came running around the corner. The man pointed the gun at him, but was unable to fire it before Powell was upon him. The two scuffled, and the gun fell to the ground. The man fled around the corner and Powell picked up the gun. Powell began to run across Ruthven and was shot in the leg. He turned around and fired two shots at his assailant. He then ran up Humboldt to Homestead Street, turned left on Homestead, and headed into an alley, where he found a walking cane. He stayed in the alley until he was arrested.
After the shooting, an arresting officer retrieved a set of keys from Powell. The keys were to a two-bedroom apartment at Fairlawn Estates in the Mattapan section of Boston. The police obtained a search warrant for the apartment, and executed the warrant the same night as the shooting. The search turned up two additional weapons: a fully-loaded black Taurus 9 mm. semi-automatic pistol with an obliterated serial number; and a .38 caliber derringer loaded with two rounds of ammunition. The Taurus was hidden in a laundry basket located in the apartment's master bedroom. The derringer was hidden on a closet shelf in the second bedroom.
Although Powell claimed to be nothing more than a sporadic visitor to the Fairlawn Estates apartment, the evidence, taken in a light most favorable to the government, established that Powell and Boykins (Powell's girlfriend) were living there at the time of the shooting. Powell and Boykins had signed a rental application, lease, lease addendum, and rules and regulations acknowledgment for the apartment in August, 1992. Moreover, Boykins told the grand jury that she and Powell (along with their two children) were living in the apartment, and that she and Powell shared the master bedroom. This testimony was introduced at trial. Finally, the evidence showed that Powell's name was on the mailbox for the apartment; that only Powell and Boykins had keys to the apartment; that Powell had personally visited the Fairlawn Estates apartment manager's office on at least two occasions in the months prior to the shooting; and that Powell had once telephoned the apartment manager and made an oral request that repairs be made to the apartment. Boykins testified that Powell's cousin and her children also were staying at the apartment around the time of the shooting. Powell testified that his cousin's husband was staying there as well.
On December 18, 1992, the grand jury returned a three-count indictment against Powell. Count I charged him with being a felon unlawfully in possession of the .44 used in the shooting. See 18 U.S.C. Sec. 922(g)(1). Count II charged him with being a felon unlawfully in possession of the Taurus pistol, the derringer, and the ammunition found in the Fairlawn Estates apartment. See id. Count III charged him with unlawfully possessing a firearm--the Taurus--with an obliterated serial number. See 18 U.S.C. Sec. 922(k). Prior to trial, the district court severed Counts II and III from the trial of Count I. The court also granted Powell's motion in limine requesting that the government not be allowed to refer to the firearms and ammunition which were the subjects of Counts II and III during its opening statement or case-in-chief. The court did, however, reserve judgment as to whether evidence relating to Counts II and III might become admissible after the defense put on its case. The government complied with the court's order and did not allude to this evidence at any point during its case-in-chief.
The defense called Arvetta Boykins as a witness. She testified, in response to a question by defense counsel, that numerous random police searches of Powell in the months preceding the shoot-out had failed to turn up a weapon on his person or in his car. The government then asked the court to revisit its ruling in limine. At this point, the court allowed the government to cross-examine Boykins about whether she or Powell had stored in the Fairlawn Estates apartment the firearms described in Counts II and III of the indictment. The court ruled that defense counsel had "opened the door" to this inquiry by asking Boykins whether "she's seen him with a weapon on occasion." Defense counsel, who had asked only about police searches of Powell in the months preceding the shoot-out, denied having asked such a question. Boykins denied that the firearms were hers or Powell's. After Boykins completed her testimony, Powell himself took the stand and asserted, inter alia, that he had never had a firearm on him in the summer of 1992.
Subsequently, the court permitted the government to introduce the evidence underlying Counts II and III as part of its rebuttal case. The court informed the jury that it should not consider the firearms found in the Fairlawn Estates apartment at all unless it first found that Powell possessed them. The court also told the jury that, if it found that Powell did possess these firearms, it should not consider this evidence "to show that the defendant was the kind of person who possessed firearms, but rather to show that the defendant had an opportunity to obtain firearms, that the defendant had knowledge of the availability of firearms, that ...
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