U.S. v. Tavares

• Citation: 93 F.3d 10
• Decision Date: 03 June 1996
• Docket Number: No. 95-1763,95-1763
• Parties: UNITED STATES of America, Appellee, v. Daniel D. TAVARES, Defendant, Appellant. . Heard
• Court: United States Courts of Appeals. United States Court of Appeals (1st Circuit)

Page 10

93 F.3d 10

UNITED STATES of America, Appellee, v. Daniel D. TAVARES, Defendant, Appellant.

No. 95-1763.

United States Court of Appeals, First Circuit.

Heard June 3, 1996.

Decided Aug. 21, 1996.

Kevin S. Nixon, Medford, MA, for appellant.

Daniel D. Tavares, on brief, pro se.

Michael J. Pelgro, Assistant United States Attorney, with whom Donald K. Stern, United States Attorney, Boston, MA, was on brief, for the United States.

Before TORRUELLA, Chief Judge, CAMPBELL, Senior Circuit Judge, and LYNCH, Circuit Judge.

LYNCH, Circuit Judge.

An early-morning assault in Mashpee, Massachusetts, on August 29, 1991, resulted in a chase through nearby woods and the arrest of Daniel D. Tavares. On May 15, 1992, Tavares was convicted of violating 18 U.S.C. § 922(g), the felon in possession of a firearm statute. Tavares appealed, and this court, sitting en banc, reversed his conviction on the ground that the district court's decision to allow the government to prove the "prior felon" element of Section 922(g) rather than accept a defense stipulation created unfair prejudice. See United States v. Tavares, 21 F.3d 1 (1st Cir.1994) (en banc ). There was a second trial and, on March 30, 1995, Tavares was again found guilty. He appeals, asserting: (i) a variety of trial errors in a pro se submission; and (ii) two sentencing errors through a counsel assisted submission. We affirm the district court on the claimed trial errors, but vacate and remand on the sentencing issues.

I.

On August 29, 1991, Tavares and his companion, Cyril Pocknett, Jr., were in a confrontation with Sheldon Blake and Rodney Hunt over accusations of the theft of a car stereo. Threats were exchanged, but no violence ensued, and Tavares and Pocknett left the area. Blake and Hunt then went to Blake's apartment. Blake lived in a second-floor apartment with his girlfriend, Nicole Cain, and their infant daughter. About an hour and a half later, Tavares and Pocknett returned and buzzed Blake's front door. Hunt opened the door and Tavares greeted him with a shotgun to the head and the words, "What's up now, motherfucker?" Standing next to Tavares was Pocknett, aiming a .22 caliber rifle at Hunt.

Acting on instinct, Hunt grabbed the barrels of both rifles, pushed them down, and fled up the stairs into Blake's apartment. Tavares then fired his shotgun repeatedly into Blake's nearby parked car. Meanwhile, Hunt noticed that his hand was bleeding. Apparently, in grabbing the barrel of Tavares' shotgun, he had ripped the palm of his hand on the gun's sight.

Cain, on hearing the gunshots, rushed to her daughter's bedroom to protect her from danger. After the shots subsided, she looked out the window and saw Tavares and Pocknett running toward the nearby woods. Shortly thereafter, the police arrived. They searched the woods, and after a chase, captured Tavares. They also found the shotgun and .22 caliber rifle, hidden under pine needles.

Back at the apartment building, Hunt, whose right hand was bleeding profusely, wrapped it in a rag which soon became bloodsoaked. On entering the building, Officer Alan Roguzac observed pools of blood in both the hallway and on the carpeting leading up to Blake's apartment. Soon after, on seeing Hunt's wound, Roguzac radioed for an ambulance. Hunt was taken to the Falmouth Hospital emergency room, where his hand received eight stitches.

Cain, Blake and Hunt were interviewed by the police. Specifically, Cain spoke to Sergeant David Mace and Detective Doris Dottridge.

Trial

Cain did not testify at Tavares' first trial. At his second trial, however, she testified that on the night of the incident she had told a male police officer and Dottridge that she had seen Tavares with a gun. Dottridge could not recollect any such statement by Cain, but Mace testified that he was the male police officer to whom Cain had made her statement. Tavares attacked Mace's testimony by pointing out that Mace's police report did not specifically report Cain's statement. Instead, Mace's report said only that "they" had seen Tavares with a gun. Tavares argued that "they" meant only Hunt and Blake, whereas Mace asserted that "they" included Cain as well.

At the conclusion of the six-day second trial, the jury requested the transcripts of the testimony of Cain, Hunt, Blake, and Earl Cash, another witness. The court explained to the jury that, thanks to the court reporter's personal investment in certain equipment, the court had the unusual ability to provide them with transcripts within a short period of time. The court noted, however, that despite the reporter's speed, skill and equipment, since the reporter was needed on a different case the next morning, he might not be able to satisfy all of the jury's requests, and that the jury was to proceed in its deliberations nevertheless. The next morning, the jury was provided with the transcripts for Cain, Hunt, and Cash, but not Blake. The court told the jury that, if possible, it would get them the transcript of Blake's testimony, but reiterated that they should proceed regardless. Within a little over an hour, and without having received the transcript of Blake's testimony, the jury returned a verdict of guilty.

Sentencing

Tavares was sentenced to ten years in prison. The guideline applicable to his offense of conviction was Section 2K2.1 (unlawful possession of a firearm). See U.S.S.G. § 2K2.1 (Nov.1990). ¹ The court then applied Section 2A2.2 (aggravated assault) by way of a cross-reference in Section 2K2.1. ² As a result of applying the cross-reference, Tavares' offense level jumped from twelve to twenty-three. Level twenty-three represented a starting offense level of fifteen for aggravated assault plus an increase of eight levels for specific offense characteristics--a three-level increase for the victim's bodily injury and a five-level increase for the discharge of a firearm. The Pre-Sentence Investigation Report recommended that the court sentence Tavares under the aggravated assault guideline because he had pointed a loaded shotgun at his victim's head, thereby evincing an "intent to do bodily harm." See U.S.S.G. § 2A2.2, comment. (n.1(a)). The Guidelines define "aggravated assault" as "a felonious assault that involved" either "a dangerous weapon with intent to do bodily harm (i.e., not merely to frighten)" or "serious bodily injury" or "intent to commit another felony." U.S.S.G. § 2A2.2, comment. (n.1).

At sentencing, however, Tavares protested that there was insufficient record support for either a finding that he had had the requisite intent to do bodily harm or a finding that serious bodily injury had resulted. Instead, he said, the evidence showed that he had merely meant to frighten his victim. Additionally, Tavares argued that, under the Guidelines, a serious bodily injury was one that required hospitalization or surgery. The government argued that the injury Tavares' victim had suffered, i.e., a cut to the hand requiring a trip to the emergency room and eight stitches, was in fact a serious bodily injury within the Guidelines' definition. See id. and U.S.S.G. § 1B1.1, comment. (n.1(j)). The court accepted this argument. The resulting Guidelines sentencing range, given Tavares' criminal history category ("CHC") of IV, was 70-87 months.

The sentencing court then departed upward by two CHC levels and one offense level to achieve a final sentencing range of 110-125 months. See U.S.S.G. § 4A1.3, p.s. (departures beyond CHC VI may occasionally be appropriate in cases of an "egregious, serious criminal record"). The court's stated basis for the upward departure was that Tavares had, in fact, committed three state crimes (that had resulted in "guilty filed" dispositions as opposed to outright convictions ³) that were not counted in his CHC score and that a CHC of IV did not adequately reflect the true seriousness of Tavares' chronic criminality.

Tavares appeals, asserting errors in both the trial and sentencing.

II. Trial

Tavares' pro se brief asserts that the district court committed reversible error in: (i) failing to provide the jury with a transcript of a particular witness' testimony that it had requested and instructing the jurors that they should proceed to deliberate without that transcript; (ii) permitting the jury to "view" the allegedly perjured testimony of a witness; (iii) failing to ask the jury whether its request for transcripts pertained to the instant trial or prior proceedings. Because contemporaneous objections were not made with respect to any of the claims, review is for plain error. See, e.g., United States v. Cruz-Kuilan, 75 F.3d 59, 62 (1st Cir.1996). We discern no miscarriage of justice and Tavares' claims fail this review. See, e.g., United States v. Sullivan, 85 F.3d 743, 751 (1st Cir.1996).

A. Failure to Provide Transcript

After deliberations commenced, the jury asked to review the testimony of four witnesses: Cain, Hunt, Cash and Blake. The next morning, the court was able to provide the jury with transcripts for Cain, Hunt and Cash, but Blake's was not yet ready. The court reporter was needed on another case and the court told the jurors that, if possible, they would be provided with the transcript, but that they should proceed with their deliberations regardless. Tavares argues that this was reversible error.

Decisions regarding the provision of trial transcripts to the jury are within the discretion of the trial judge. See United States v. Akitoye, 923 F.2d 221, 226 (1st Cir.1991) (decision as to whether requested testimony should be reread to jury rests in trial court's discretion). In making its decision, the trial judge is to consider factors such as the ease or difficulty of compliance with the jury's request and what is likely to be gained or lost. Id. The court here provided the jury with three of the four transcripts requested. The one transcript not provided was that of Blake, who had testified most recently, and that was because the...