U.S. v. Williams, 89-3093

• Citation: 892 F.2d 296
• Decision Date: 25 January 1990
• Docket Number: No. 89-3093,No. 89-3307,Nos. 89-3093,89-3184 and 89-3307,No. 89-3184,89-3093,89-3184,89-3307,s. 89-3093
• Parties: 29 Fed. R. Evid. Serv. 91 UNITED STATES of America v. John WILLIAMS, Appellant inUNITED STATES of America, Appellant in, v. John WILLIAMS. UNITED STATES of America, Petitioner in, v. John WILLIAMS, Actual Respondent, The Honorable William L. Standish, Nominal Respondent.
• Court: United States Courts of Appeals. United States Court of Appeals (3rd Circuit)

Page 296

892 F.2d 296

29 Fed. R. Evid. Serv. 91

UNITED STATES of America v. John WILLIAMS, Appellant in No. 89-3093.

UNITED STATES of America, Appellant in No. 89-3184, v. John WILLIAMS.

UNITED STATES of America, Petitioner in No. 89-3307, v. John WILLIAMS, Actual Respondent, The Honorable William L. Standish, Nominal Respondent.

Nos. 89-3093, 89-3184 and 89-3307.

United States Court of Appeals Third Circuit.

Argued Oct. 16, 1989.

Decided Dec. 26, 1989.

Rehearing and Rehearing In Banc Denied Jan. 25, 1990.

Thomas S. White, Joel B. Johnston (argued), Asst. Federal Public Defenders, George E. Schumacher, Federal Public Defender, Pittsburgh, Pa., for appellant/appellee/respondent.

Constance M. Bowden (argued), Asst. U.S. Atty., Charles D. Sheehy, Acting U.S. Atty., Pittsburgh, Pa., for appellee/appellant/petitioner.

Before BECKER, COWEN and SEITZ, Circuit Judges.

OPINION OF THE COURT

COWEN, Circuit Judge.

John Williams appeals from a judgment of conviction for possessing a gun as a convicted felon, in violation of 18 U.S.C. § 922(g)(1) (1982 & Supp. V 1987). ¹ We will affirm.

I.

A jury could reasonably find the following facts. Larry Anderson spent Christmas day, 1987, drinking with friends in Clifton Park, on the North Side of Pittsburgh. ² He returned to Wanda Gillmore's house at 860 Kirkbride Street and at 8:30 or 9 p.m. fell asleep in a living room chair. Wanda Gillmore is related to Anderson by marriage. She is also John Williams' sister.

About an hour and a half later, Anderson was awakened by a push. John Williams stood over him, saying he had a contract out on Anderson and three other people. Anderson, blurry from sleep, asked Williams what he meant, but Williams simply stared at him. Williams then said that Anderson owed him three dollars. Anderson replied that he had paid it back, to which Williams responded, "Well, I ought to shoot you." Williams began to pull a pistol from his side, then stopped, saying he would not use it in his sister's house. He pushed the pistol back and turned towards the door; then turned back and said, "Now I am going to shoot you." As Williams pulled out the pistol, Anderson got up from his chair and ran into the dining room. Williams fired. He chased Anderson between the dining and living rooms several times before running out of the house.

Anderson watched Williams leave and closed the door behind him. He went back to the living room and watched Williams cross the street to 853 Kirkbride, where Williams' sister Harriet Boyd lived. Shaken, Anderson sat in the living room until Wanda Gillmore arrived home about a half hour later.

Wanda Gillmore testified that when she walked into her house between 11 p.m. and midnight Christmas night, she found Anderson in the apartment, shaking. App. at 660. She asked what was wrong and Anderson told her that her brother, John Williams, had shot at him and chased him around the apartment. Gillmore smelled gunfire in the air and saw a bullet hole in the wall. App. at 661.

Gillmore left to talk to her sister Harriet Boyd about the shooting. When she arrived at Boyd's house, she found Williams lying on the couch. She asked him why he fired a gun in her house. She testified, "[H]e told me if I do not get out of his face, he would shoot me next." App. at 665. Gillmore could tell Williams had been drinking by the smell on his breath and the way he acted. She called the police.

Sergeant Edward L. Sorace of the Pittsburgh Police testified he was the first to arrive, shortly after the police received a call at 2:40 a.m. on December 26. App. at 676, 679. When he stepped out of his car, he smelled gun smoke in the air. He entered 860 Kirkbride, where Larry Anderson told him that John Williams had fired several shots at him inside the house. Anderson showed him a bullet hole in the back wall of the living room and said Williams had fled to a house across the street, number 853.

Sorace knocked on the door of 853 Kirkbride and was admitted. He found John Williams lying on the couch and Harriet Boyd talking on the telephone. Sergeant Sorace arrested Williams and asked him where the gun was, but Williams "didn't know anything about anything, about a gun or anything." App. at 677, 679. Williams was taken to the police wagon.

Sergeant Frederick Wolfe and Lieutenant John F. Mook arrived as Williams was being put in the wagon. Lieutenant Mook testified that when he entered 853 Kirkbride Street, Mrs. Boyd was sitting on a couch, talking on the telephone. He explained to Mrs. Boyd that the police were interested in finding the gun used in the shooting and, because the suspect had been arrested in her home, he thought the gun might be here as well. She granted him permission to search the house.

The officers began to search, which took some effort since the house was in disarray. Lieutenant Mook spoke to Mrs. Boyd again, saying that if she had the gun, he wished she would say so, since he hated to waste time.

Mrs. Boyd responded that she had a gun. App. at 698. She took Mook and other officers upstairs, went into a cupboard and took out a silver .22 revolver. Mook could tell the weapon had not been fired recently, since it was fully loaded and had no smell of gun powder on it.

Meanwhile, Officer William Seifer and his partner, searching downstairs, discovered a gun underneath the sofa. Seifer testified the gun smelled as if it had been fired recently. ³ Anderson later recognized the gun as the one Williams fired--a black revolver with a brown handle. The gun contained a spent shell. Dents on the shell matched the gun's firing pin.

Harriet Boyd also testified at her brother's trial. She first saw him at five or six o'clock on Christmas day. App. at 628-29, 633. At some point--Boyd could not remember the time--Williams left, saying he was going to Miss Sis's house. Williams was gone for forty-five minutes or an hour. When he returned, Williams told Boyd, "Tony and Larry stole the dope man's dope" and that he was going to get them. App. at 631. She understood that Williams was referring to Larry Anderson. Williams pulled a gun from his side and showed it to Boyd. She recalled it was a revolver, although she could not recall the color. When Williams showed her the gun, she said he should not have it. Williams did not reply.

Some controversy attended Mrs. Boyd's testimony. Like her brother John, she is a prior felon. She was convicted of manslaughter and on February 22, 1977, was sentenced to imprisonment of not less than eighteen months and not more than five years. She testified that she was taken to a halfway house two days after her conviction. She was "very sure" that she served eighteen months there, after which she was released. She could not remember whether she was released before or after October of 1978. ⁴

On the basis of her testimony, the district court concluded that she had been released from custody more than ten years prior to the trial, which began on October 17, 1988. Therefore, the district court preliminarily determined that, pursuant to Fed.R.Evid. 609(b), her conviction was inadmissible for the purpose of impeaching her credibility generally. ⁵

In addition, the defense argued the conviction was relevant to show bias. Since Boyd had a prior felony conviction and was found in possession of a gun, she was subject to indictment for the same offense as Williams. She therefore had a motive to ingratiate herself with the government in order to avoid indictment. The court reserved decision on admissibility of the conviction for this purpose until later in the trial. The court ultimately ruled the conviction was inadmissible to show bias.

Prior to trial, Dr. Ralph E. Tarter, a clinical psychologist, examined Williams for the purpose of evaluating his mental capacities and documenting any psychological disorders he might suffer. Tarter interviewed Williams on August 1, 1988 for a period of three to four hours, administering a variety of tests and conducting a structured psychological interview. Dr. Tarter set forth his findings in a written report, see Supplemental Appendix to the Response and Reply Brief of the United States, and in a videotaped deposition taken for purposes of presentation at trial, App. at 87-179.

Dr. Tarter found that Williams, a man in his forties, possessed a full scale IQ of 67 on the Wechsler Adult Intelligence Scale, placing him in the mentally retarded ranges of intelligence. His IQ is in the second percentile for intellectual capacity in the normal population. ⁶ He has a pervasive learning disability, limited capacity to exercise adequate judgment and very poor memory. His answers to the structured interview (the Diagnostic Interview Schedule) revealed that he generally drinks continuously during the day, and has done so since the age of seventeen, consuming approximately one-half gallon per day of whatever alcohol is available. Williams told the doctor he experienced "blackouts" on many occasions, which the doctor found consistent with his constant drinking. Supp.App. at 2; App. at 139-40. In Dr. Tarter's opinion, the additive effects of the neurotoxins in cheap liquors may have contributed to Williams' cognitive deficiencies. Dr. Tarter also found Williams suffers from an antisocial personality disorder and when stressed is unable to restrain himself in a socially normative fashion.

It was Dr. Tarter's opinion that Williams was having a blackout at the time of the incident. App. at 155-57, 160. He based his opinion on Williams' fragmented memory of the events of Christmas day and Williams' admission that he had been drinking that day. App. at 157, 160.

According to Dr. Tarter, a blackout is caused by rapid absorption of alcohol in the body, such that there is too much alcohol in the system to be broken down. This causes the brain, in effect, to become anesthetized. In this condition, the brain cannot perform its regular functions and shuts down. Or, as Dr. Tarter put it, it "goes on...