United States v. Robertson

• Decision Date: 23 January 2020
• Docket Number: No. 18-3375,18-3375
• Citation: 948 F.3d 912
• Parties: UNITED STATES of America, Plaintiff - Appellee v. Kison ROBERTSON, Defendant - Appellant
• Court: U.S. Court of Appeals — Eighth Circuit

948 F.3d 912

UNITED STATES of America, Plaintiff - Appellee

v.Kison ROBERTSON, Defendant - Appellant

No. 18-3375

United States Court of Appeals, Eighth Circuit.

Submitted: October 18, 2019

Filed: January 23, 2020

Rehearing and Rehearing En Banc Denied March 26, 2020

Counsel who presented argument on behalf of the appellant was Stephen Daniel Demik, of Rapid City, SD. The following attorney(s) appeared on the appellant brief; Stephen Daniel Demik, of Rapid City, SD.

Counsel who presented argument on behalf of the appellee was Kevin Koliner, AUSA, of Sioux Falls, SD. The following attorney(s) appeared on the appellee brief; Eric D. Kelderman, AUSA, of Rapid City, SD.

Before SMITH, Chief Judge, GRUENDER and BENTON, Circuit Judges.

GRUENDER, Circuit Judge.

Kison Robertson appeals his conviction and sentence for assault with a dangerous weapon, 18 U.S.C. §§ 113(a)(3), 1152, assault resulting in serious bodily injury, 18 U.S.C. §§ 113(a)(6), 1152, and discharge of a firearm during the commission of a crime of violence, 18 U.S.C. § 924(c)(1)(A)(iii). Robertson challenges two of the district court’s evidentiary rulings, its denial of a requested jury instruction, and its imposition of three supervised release conditions. We affirm the evidentiary rulings, the denial of the proposed instruction, and two of the supervised release conditions. We vacate and remand to the district court the condition prohibiting Robertson from consuming alcohol or visiting establishments that primarily serve alcohol.

I.

On March 30, 2017, Robertson, Urva Quick Bear, Sr., and Urva Quick Bear, Jr. entered into a physical altercation at Evergreen Housing in Porcupine, South Dakota. The altercation ended, and Robertson left the scene in his vehicle while the Quick Bears remained. Robertson admitted he then drove back to the scene within a matter of minutes. Multiple witnesses testified that Robertson returned with a gun and fired two shots, one in the direction of Quick Bear, Jr. and one in the direction of Quick Bear, Sr., hitting Quick Bear, Sr. in the abdomen. Robertson admitted that he fired the shots but asserted he only intended to scare the Quick Bears away and protect himself.

A grand jury indicted Robertson. The jury convicted him of one count each of assault with a dangerous weapon, assault resulting in serious bodily injury, and discharge of a firearm during the commission of a crime of violence. The district court calculated a total offense level of 24, a criminal history category of VI, and an advisory sentencing guidelines range of 77 to 96 months for the assault offenses, plus a mandatory 10-year-minimum consecutive sentence for the firearm-discharge offense. The district court sentenced Robertson to 197 months’ imprisonment and 3 years’ supervised release. The district court also imposed several supervised release conditions, including three special conditions that were recommended in the presentence investigation report. Robertson did not object to any of the conditions before or during the sentencing hearing.

Robertson appeals his conviction on the grounds that the district court abused its discretion by admitting certain evidence at trial and denying his proposed jury instruction. He also argues the court improperly imposed three supervised release conditions.

II.

First, Robertson argues that the district court improperly admitted an anonymous 911 call from the scene of the altercation that contained a statement identifying Robertson as "the same one that shot his gun over here last month." Robertson argues that this evidence violated the Confrontation Clause of the United States Constitution and that it should have been excluded under Federal Rule of Evidence 403. We review denials of confrontation clause objections de novo , United States v. Lee , 374 F.3d 637, 643-44 (8th Cir. 2004), and review challenges under Rule 403 for an abuse of discretion, United States v. Guzman , 926 F.3d 991, 999 (8th Cir. 2019).

The Confrontation Clause prohibits the admission of testimonial hearsay unless the declarant is unavailable and the defendant has had a prior opportunity to cross-examine the declarant. Crawford v. Washington , 541 U.S. 36, 59, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004). We have held that 911 calls are admissible as nontestimonial statements when they are "excited utterances." See United States v. Brun , 416 F.3d 703, 707 (8th Cir. 2005) ; United States v. Phelps , 168 F.3d 1048, 1054-55 (8th Cir. 1999). An excited utterance is "[a] statement relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition." Phelps , 168 F.3d at 1054 (quoting Fed. R. Evid. 803(2) ). We also have held that 911 calls that are made to "enable police to identify and apprehend an armed, threatening individual ... [are] not testimonial in nature and thus d[o] not implicate the Confrontation Clause." United States v. Mitchell , 726 F. App'x 498, 502 (8th Cir. 2018) (per curiam ).

We hold that the admission of the challenged 911 call here did not violate Robertson’s confrontation right because the call was not testimonial in nature. The statements on the call were excited utterances made "under the stress of excitement" caused by the "startling event" of the shooting involving Robertson and the Quick Bears. See Phelps , 168 F.3d at 1054 ; Brun , 416 F.3d at 708 (noting that statements were "unstructured" and "not the product of police interrogation" in determining they were excited utterances). The 911 caller breathlessly described the shooting by saying Robertson "just now shot at Urva" and pleaded with the dispatcher, saying "Hurry, hurry! He’s going to come back with a gun!" Moreover, the statement that describes Robertson as the "same one who shot his gun over here last month," was intended to help police "identify and apprehend an armed, threatening individual." See Mitchell , 726 F. App'x at 502. For these reasons, the challenged 911 was a nontestimonial statement that does not implicate the Confrontation Clause.

We also hold the district court did not abuse its discretion in admitting this call over Robertson’s Rule 403 objection. See Guzman , 926 F.3d at 999. Rule 403 provides that a district court may exclude evidence if "its probative value is substantially outweighed by a danger of ... unfair prejudice" or by considerations of whether counsel is "needlessly presenting cumulative evidence." Fed. R. Evid. 403. Robertson argues that the probative value of the challenged 911 call was substantially outweighed by its potential for prejudice and was needlessly cumulative.

We conclude that the district court did not abuse its discretion in deciding that the probative value of the challenged 911 call was not substantially outweighed by the risk of unfair prejudice stemming from the description of Robertson as "the same one that shot his gun over here last month." The challenged 911 call is the only one of five admitted 911 calls that named Urva Quick Bear, Sr. as the person at which Robertson was shooting. In addition, the call is significant in that it describes Robertson as shooting "at Urva," which was probative of Robertson’s intent to shoot Urva Quick Bear, Sr., and not merely warn him, as Robertson testified was his intent. See Phelps , 168 F.3d at 1058 (noting that evidence had "significant probative value" when it showed defendant’s intentional hostility toward the alleged victim). Although the call also referenced a prior bad act committed by Robertson, neither party claims that this statement was highlighted or even discussed during trial. See United States v. Halk , 634 F.3d 482, 488 (8th Cir. 2011) (finding that evidence of a defendant’s previous firearms offenses was not unfairly prejudicial when the court limited references to them during trial). In weighing the probative value of evidence against the dangers of unfair prejudice, "the general rule is that the balance should be struck in favor of admission." United States v. Dennis , 625 F.2d 782, 797 (8th Cir. 1980). Despite the risk of prejudice in admitting the statement regarding the shooting "last month," we do not find that the district court abused its broad discretion in determining this risk did not substantially outweigh the call’s probative value. See Halk , 634 F.3d at 487 ("We review the court’s decision to admit such [404(b) ] evidence for an abuse of discretion, and will reverse only when the evidence clearly had no bearing on the case ....").

Robertson also argues that the challenged 911 call should have been excluded under Rule 403 because it was needlessly cumulative. "Evidence is ‘cumulative’ when it adds very little to the probative force of the other evidence" and its contribution to the truth "would be outweighed by its contribution to the length of the trial, with all the potential for confusion ... that a long trial creates." United States v. Williams , 81 F.3d 1434, 1443 (7th Cir. 1996) ; cf. United States v. Harris-Thompson , 751 F.3d 590, 601-02 (8th Cir. 2014) (concluding that the district court did not abuse its discretion when it excluded as cumulative a lengthy, forty-five-minute video). The 911 call here had probative value, as discussed above, and to the extent any evidence it contained was cumulative, the call was less than two minutes in length and therefore did not greatly lengthen the trial or burden the jury. Therefore, the district court did not abuse its discretion in admitting it into evidence.

Second, Robertson argues that testimony that Quick Bear, Sr. owed Robertson twenty dollars for marijuana should also have been excluded under Rule 403. The Government responds that Quick Bear, Sr.’s testimony about this debt was admissible as part of the res gestae of the crime because it supplied a possible reason for the initial physical altercation. Res gestae , "also known as intrinsic evidence, is evidence of wrongful conduct other than the conduct at issue ... offered for the...