U.S. v. Stevens, 93-7734
| Decision Date | 03 November 1994 |
| Docket Number | No. 93-7734,93-7734 |
| Citation | 38 F.3d 167 |
| Parties | The UNITED STATES of America, Plaintiff-Appellee, v. Douglas Ray STEVENS, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Fifth Circuit |
Edward L. Joyal, Jr., Corpus Christi, TX, (Court-appointed), for appellant.
Bert Isaacs, B. Janice Ellington, Paula C. Offenhauser, Asst. U.S. Attys., Gaynelle Griffin Jones, U.S. Atty., Houston, TX, for appellee.
Appeal from the United States District Court for the Southern District of Texas.
Before JOHNSON, HIGGINBOTHAM and DAVIS, Circuit Judges.
Douglas Ray Stevens appeals his conviction for possession of a firearm as a felon, in violation of 18 U.S.C. Sec. 922(g)(1). We vacate and remand.
In late 1992, Douglas Ray Stevens, then known as Douglas Ray Williams, was under investigation by the Texas Department of Public Safety for illegal gaming operations. As part of this investigation, law enforcement officers obtained a warrant authorizing them to search Stevens' home for evidence of bookmaking. To execute this warrant, a team of state and local officers borrowed a flower delivery truck and came to Stevens' door carrying poinsettias. When Stevens and his wife answered the door, the officers entered peacefully through the open door, informed Stevens that they were police officers and that they intended to search his house, which they proceeded to do.
During this search, Officer Raul Tovar found two handguns, both Smith & Wesson .38 caliber revolvers, one chrome and one blued. Tovar found the chrome revolver in a locked briefcase that Stevens opened for him. This handgun was unloaded and bore the serial number J555813. Stevens told Officer Tovar that he had been given this gun to settle a gambling debt, so Tovar seized the chrome revolver as evidence of Stevens' gambling operation. Officer Tovar discovered the blued revolver inside a shoe box in a closet. The blued handgun was loaded and stamped "CCPD," signifying that at one time it had belonged to the Corpus Christi Police Department. The officers had no reason to connect the blued CCPD revolver to possible gambling violations so they photographed this handgun but did not seize it.
Some time later, a fire occurred in the Stevens home and the blued CCPD revolver was destroyed. While investigating this fire, the Texas officers discovered Stevens' true identity and learned that he had a prior felony conviction. Stevens was then charged with knowing possession of the chrome revolver bearing serial number J555813. He was not charged with possession of the blued CCPD revolver.
Several references were made to the blued CCPD revolver during the trial. Officer Tovar testified on cross-examination during the Government's case that he had found another handgun in a closet, that he was not sure who owned it and that it was not seized because it was not evidence of gambling.
The defense began its case by calling Stevens himself. Stevens testified that the chrome revolver and the briefcase in which it was stored belonged to his wife. He explained that they had only been married for two months at the time of the search and that he was not aware that among his wife's belongings was a briefcase containing a revolver. The Government asked Stevens on cross-examination whether he knew about the blued CCPD revolver in the closet, and whether it belonged to him. Stevens denied both knowledge and ownership of this gun as well.
Stevens' wife, Martha, also testified. She affirmed that she was indeed the owner of both the chrome revolver and the briefcase, and that her husband had not known of them. The Government, on cross-examination, attempted to impeach Martha Stevens' testimony that she owned the chrome revolver. The prosecution showed her the picture of the blued CCPD revolver and asked her if this was the gun that was in the briefcase. She responded that she was not familiar with guns but that the gun in the photograph might be hers. The Government later asked her a series of questions about who owned any other guns found in the house, and specifically who owned the gun found in the shoe box in a closet. She replied that she did not own any other guns, and that she had not known that any other guns had been found.
After the defense rested, the Government recalled Officer Tovar to give rebuttal testimony. Tovar identified the blued revolver in the photograph as "a service revolver, a Smith & Wesson, .38 caliber." He stated that he had found this revolver in Stevens' house, in a box in the hallway, and that he had not kept it as evidence. The Government then offered the photograph of the blued revolver into evidence, causing the following exchange:
Counsel's closing arguments focused almost entirely on the chrome revolver the officers found in the briefcase and whether Stevens or his wife owned that handgun. Counsel made only one reference to the blued CCPD revolver. The prosecutor explained that "[t]he only reason the Government has that in evidence is to the credibility of Mrs. Stevens."
After deliberating for several hours, the jury sent the judge a note that read:
Can we accept the picture of the CCPD gun as evidence of possession. Why didn't the police department confiscate both guns?
The judge proposed to counsel that he reply as follows:
With respect to your first question, you are to consider all the evidence in the record on the issues that have been presented. Whether and to what extent you accept that evidence as proof of the offense alleged is your choice.
With respect to your second question, I am not allowed to answer. If the reason was stated by a witness, it is in evidence. If it was not stated, then the reason is not in evidence. I cannot furnish testimony to you not already in evidence.
Stevens' attorney objected to the first paragraph of the answer, arguing that the jury was not asking whether they could use the photograph of the...
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