United States v. Collins

UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT

No. 94-1049

UNITED STATES,

Appellee,

v.

TERRY LYNN COLLINS,

Defendant-Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Robert E. Keeton, U.S. District Judge]

Before

Boudin and Lynch, Circuit Judges,

and Schwarzer,* Senior District Judge.

Lawrence Rizman for the appellant.

Michael Pelgro, Assistant United States Attorney, with whom

Donald K. Stern, United States Attorney, and Ralph F. Boyd, Jr.,

Assistant United States Attorney, were on brief, for the United
States.

July 20, 1995

* Of the District of Northern California, sitting by designation.

LYNCH, Circuit Judge. Convicted of being a felon
LYNCH, Circuit Judge.

in possession of a firearm in violation of 18 U.S.C.

922(g)(1), Terry Lynn Collins received a sentence of more

than 15 years (188 months) in prison. He appeals, claiming

that his conviction should be reversed under United States

v. Tavares, 21 F.3d 1 (1st Cir. 1994)(en banc), in which this

court, after Collins' trial, changed its rule concerning the

admissibility of the nature of the prior felony conviction in

prosecutions under 922(g)(1). Collins also argues that the

court abused its discretion in admitting as an "excited

utterance" the statement of his intended victim and that

overall the evidence is insufficient to support his

conviction. His conviction is affirmed.

First, the facts, as they were presented to the

jury. Renewing an old and unfriendly acquaintance, Collins,

leaning out of his car window, got into an escalating

argument with Harry Albizu in front of Albizu's parents' home

in Fitchburg on April 29, 1992. When Harry's hefty older

brother appeared on the front steps, Collins drove off,

yelling back to Harry, "I'll be right back. I'm gonna shoot

your fuckin' ass." Apparently believing Collins to be a man

of his word, an upset Harry Albizu hailed a police car,

containing Fitchburg State College Police Officer Lord, told

him of the threat, and Officer Lord radioed the Fitchburg

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Police for help. Albizu's sister called the police in the

meantime.

Sure enough, Collins returned shortly, driving the

Camaro he and his wife had just bought, and this time

bringing two men with him. Collins yelled for Albizu to come

out and out Albizu came, but only to the porch. Collins

tried to entice Albizu down from the porch steps with various

insults concerning Albizu's relationship with his mother.

Albizu tried to persuade Collins to leave, but the

weightlifting bar he threw at Collins missed.

Hearing police sirens approaching, Collins gestured

to his two comrades. They put a long stick-like object that

was wrapped up into the hatch of the Camaro. As the police

arrived, Collins, still yelling at Albizu, backpedaled toward

his car.

Police Officer Romano, as he patted down Collins

at the side of the Camaro, saw shotgun shells on the back

seat. The hatch door to the car was ajar. As Officer Romano

looked in, he saw a pump shotgun in a partially zippered case

next to two loose shotgun shells. The gun was fully loaded.

A fishing license and fishing rods, also in the hatch,

belonged to Collins. Officer Romano asked Collins if the

shotgun was his. Collins replied sarcastically, "No. It's

yours."

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Collins was placed under arrest. Hearing that he

was being arrested, an agitated Collins pointed at Albizu,

and said to a police officer he knew, "Why am I being

arrested? They've got guns too."

Simultaneously, Police Officer Raymond was

interviewing Albizu. A visibly upset Albizu described the

initial argument he had had with Collins, and quoted Collins'

statement as described earlier.

The gun was owned by Collins' father, who kept it

at his house, which was where Collins lived.

The Tavares Claim

The prosecution at trial introduced, without

objection, Collins' prior felony conviction for manslaughter

and referred several times to the manslaughter conviction in

argument. Collins' counsel did not offer to stipulate that

Collins was a felon for purposes of 922(g)(1). Indeed,

under the law of this Circuit at the time of trial, the

government would not have been required to accept such a

stipulation. See United States v. Collamore, 868 F.2d 24, 28

(1st Cir. 1989). Several months after Collins' trial, this

Court changed that rule in United States v. Tavares, 21 F.3d

1, 5. Tavares "revisited this issue and determined that when

a defendant is charged with being a felon-in-possession of a

firearm, evidence of the nature of the prior conviction is

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not admissible unless special circumstances establish that

the relevance of the evidence is 'sufficiently compelling to

survive the balancing test of Fed. R. Evid. 403.'" United

States v. Lewis, 40 F.3d 1325, 1342-43 (1st Cir.

1994)(quoting Tavares, 21 F.3d at 5).

This Court has twice since applied Tavares.

In United States v. Melvin, 27 F.3d 703 (1st Cir. 1994), the

court applied Tavares retroactively to cases pending on

direct review where counsel had offered to stipulate. Id. at

706-07 n.4. In Melvin, the court reversed, finding that the

admission of the convictions on the facts was not harmless

error. Id. at 709. In United States v. Lewis, 40 F.3d 1325

(1st Cir. 1994), the court applied Tavares where defense

counsel had offered to stipulate, but found that any error

was harmless. Id. at 1342-43.

Hoping to benefit from Tavares, Collins attempts to

shoehorn his arguments into categories that ill fit. He

argues that he suffered from ineffective assistance of

counsel because his counsel neither objected to nor offered

to stipulate as to the manslaughter conviction.1 But

1. This Court does not normally consider ineffective
assistance of counsel claims on direct appeal. See, e.g.,

United States v. Costa, 890 F.2d 480, 482-83 (1st Cir. 1989).

When the record is sufficiently developed to allow analysis,
however, an appellate court may determine the merits of such
a contention on direct appeal. See United States v. Natanel,

938 F.2d 302, 309 (1st Cir. 1991), cert. denied, 502 U.S.

1079 (1992). This case falls within the exception.

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counsel made no error in light of the law at the time. The

test for an ineffective assistance of counsel claim as

articulated in Strickland v. Washington, 466 U.S. 668 (1984),

is not met. Collins also argues that the admission of the

conviction was barred by Fed. R. Evid. 403, as unduly

prejudicial. Inasmuch as there was no objection, the normal

standard of review for such a claim would be for plain error

under Fed. R. Crim. P. 52(b), as explicated by the Supreme

Court in United States v. Olano, 113 S. Ct. 1770 (1993).

Counsel, though, can hardly be faulted for not

objecting or for failing to stipulate, given the law at the

time. Considerations of fairness also raise questions about

the appropriate standard of review where the failure to

object (or to stipulate) most likely was based on counsel's

correct understanding of the law at the time.

In United States v. Marder, 48 F.3d 564 (1st Cir.),

cert. denied, 115 S. Ct. 1441 (1995), this Court addressed an

analogous situation. Without objection, the district court

had instructed on the elements of the government's case in

accordance with the law at the time. A subsequent Supreme

Court decision made clear that an additional instruction on

willfulness was required, to the effect that the jury had to

find that the defendant knew the currency structuring in

which he was engaged was unlawful. Id. at 572-73. This

Court then faced the issue the Olano court specifically

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reserved: what happens "where the error was unclear at the

time of trial but becomes clear on appeal because the

applicable law has been clarified." Id. at 573 (quoting

Olano, 113 S. Ct at 1777).

The Marder court applied plain error analysis. It

is worth noting that Marder had less sympathy with counsel's

failure to object and for good reason. At the time of trial,

this Circuit's law foreshadowed the Supreme Court's decision

and the precise issue had caused withdrawal of an opinion by

this Court and reconsideration en banc. Counsel was on

notice. Id. at 572 n.5. The Marder court avoided analysis of

issues that have divided other circuits on whether an "error"

occasioned by a change in law was plain error and whether the

defendant's substantial rights were affected2 by turning to

the last prong of the Olano analysis: whether the "error"

"seriously affects the fairness, integrity or public

reputation of the judicial proceedings." Id. at 574

(quoting Olano, 113 S. Ct. at 1779)). Marder held that a

defective willfulness instruction did not have any of those

effects, disagreeing with the views of three other circuits.

2. The Second Circuit has held that where the court has
clarified the law, fairness requires that the burden on plain
error analysis be shifted to the government to show that any

error did not affect the defendant's substantial rights,
varying from Olano's rule that in the usual plain error

analysis the burden is on the defendant to show actual

prejudice. See United States v. Viola, 35 F.3d 37, 42 (2d

Cir. 1994), cert. denied, 115 S. Ct. 1270 (1995).

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Id. at 574-75. Applying that analysis here, the admission of

the manslaughter conviction does not present even as serious

a challenge as that posed in Marder, and certainly does not

rise to the level required by Olano. See also United States

v. Gaudin, 63 U.S.L.W. 4611, 4616-17 (1995) (Rehnquist, C.J.,

concurring); United States v. Whiting, 28 F.3d 1296, 1309

(1st Cir.), cert. denied 115 S. Ct. 378 (1994).

Even if we allow for the differences between the

positions of counsel who failed to object in Marder and this

case, it does not assist Collins. If there was any error

here, regardless of who has the burden on prejudice, such

error was not prejudicial. The district court on several

occasions gave limiting instructions as to the manslaughter

conviction, and the evidence of Collins' guilt was

overwhelming, including evidence from his own mouth.

Excited Utterance

Collins argues that the district court erred in

admitting into evidence Albizu's statement to Officer Raymond

that Collins had said, "I'll be right back. I'm gonna shoot

your fuckin' ass." Collins argues that Albizu's testimony at

trial -- that the threat had been "I'm going to come back

and get your ass" -- did not confirm the statement. The

variance does not make the statement inadmissible, but only

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raises questions of credibility for the jury to decide. See

United States v. Portalla, 985 F.2d 621, 624 (1st Cir. 1993).

The district court's decision to admit evidence is

reviewed for an abuse of discretion. United States v.

Bailey, 834 F.2d 218, 228 (1st Cir. 1987). The statement met

the three pronged test under Fed. R. Evid. 803(2), i.e., (i)

the declarant experienced a startling event; (ii) the

statement was made while the declarant was subject to the

influence of the event; and (iii) the statement related to

the event. See id. Albizu experienced the startling event of

Collins threatening to return and shoot him. While Albizu

was visibly upset and agitated, Albizu made his statement to

Officer Raymond after Collins' second visit, earlier having

made a similar statement to Officer Lord. The statement

self-evidently related to the events at hand. The question

for the district court was whether a jury could find the

conditional fact upon which the relevancy of the statement

turned (i.e., whether Albizu made the statement) by a

preponderance of the evidence. Huddleston v. United States,

485 U.S. 681, 690 (1988). There were sufficient indicia of

reliability as to Officer Raymond's report. See Portalla,

985 F.2d at 624. Officer Raymond wrote Albizu's statement

down verbatim, Albizu separately made a substantially similar

excited utterance to Officer Lord, and Collins did return to

resume the argument with a loaded shotgun.

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Sufficiency of the Evidence

Collins argues that the government presented

insufficient evidence to convict him of being a felon in

possession of a firearm because he was a mere passenger in

the car in which the firearm was found. This argument is

without merit.

Our inquiry is whether there was evidence from

which a rational trier of fact could conclude that Collins

was guilty beyond a reasonable doubt. See United States v.

Moreno, 991 F.2d 943, 944 (1st Cir. 1993), cert. denied, 114

S. Ct. 457 (1994). Collins had a motive to possess the

firearm, he had just had an argument with Albizu in which he

had threatened to return and shoot Albizu, Collins did return

in a car with a loaded shotgun and extra ammunition,

Collins' friends moved the gun upon his gesture, the gun was

kept in the house where Collins lived, and when arrested,

Collins complained to the police that Albizu had guns too.

The conviction is affirmed.

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