Caseflicks

Court of Appeals for the Seventh Circuit • 2014

United States v. Darnell Boyce

742 F.3d 792 | 93 Fed. R. Serv. 978 | 2014 U.S. App. LEXIS 2744

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Takeaway

In short, this case confirms that Illinois restoration letters apply conviction by conviction, that a victim's immediate 911 account of an assailant's access to a gun may qualify as an excited utterance, and that prior convictions may still support an ACCA enhancement without a jury finding.

Background

After Sarah Portis called 911 to report that the father of her children, Darnell Boyce, had just hit her and had a gun, Chicago police responded to her home. When Boyce later returned outside the residence, he fled from officers. During the chase, Officer Robert Cummings testified that he saw Boyce retrieve a nickel-plated handgun from his midsection and throw it over a garage. Officers recovered a .357 Magnum from that area and found three matching .357-caliber bullets in Boyce's pocket.

A jury convicted Boyce of being a felon in possession of a firearm and ammunition under 18 U.S.C. § 922(g)(1). Before trial, the district court denied his motion to dismiss the indictment, rejecting his claim that Illinois had restored his civil rights. At trial, the court admitted Portis's recorded 911 call under the present-sense-impression and excited-utterance exceptions to hearsay. The court also found that Boyce had the predicate convictions required by the Armed Career Criminal Act and sentenced him to 210 months, above the Act's fifteen-year minimum. Boyce appealed.

Issues

Issue #1

Whether Illinois's form letter restoring Boyce's right to vote and hold state office restored his civil rights as to all of his earlier felony convictions, eliminating the predicate felony required for a § 922(g)(1) charge.

Holding

No. The letter restored civil rights only for the unlawful-use-of-a-weapon conviction whose sentence Boyce had most recently completed, not for his earlier 1991 convictions.

Reasoning

Under 18 U.S.C. § 921(a)(20), a conviction does not qualify as a § 922(g)(1) predicate if the defendant has been pardoned or has had civil rights restored, unless the restoration expressly restricts firearm possession. The Seventh Circuit had already held in Buchmeier that the Illinois form letter received by Boyce can constitute a restoration of civil rights.

But Buchmeier did not answer which conviction the letter covered. Under United States v. Burnett, Illinois restoration letters operate conviction by conviction. A letter sent after a prisoner completes a later sentence restores rights as to that conviction; it does not automatically restore rights for earlier convictions whose sentences ended at a different time.

Boyce's parole-revocation sentence on the 1991 convictions ended before he completed his prison and supervised-release terms for the later unlawful-use-of-a-weapon conviction. He offered no evidence that those sentences ended simultaneously, and he bore the burden of proving restoration. The district court therefore did not clearly err in finding separate termination dates, so the earlier felonies remained valid predicates.

Issue #2

Whether the district court improperly admitted Portis's statements in her 911 call that Boyce had a gun when Portis did not testify at trial.

Holding

No. The court did not abuse its discretion because the statements were admissible as excited utterances under Federal Rule of Evidence 803(2).

Reasoning

An excited utterance requires a startling event, a statement made while the declarant remains under the stress of that event, and a statement relating to it. Unlike a present sense impression, an excited utterance need not describe the event itself or be made at the precise moment it occurs; it need only be made while the declarant is still excited by the event and relate to it.

Portis reported that Boyce had just hit her, that he was going crazy, and that she had just run to a neighbor's home. The call occurred immediately after the domestic battery, and Officer Solomon described her as emotional and as appearing to have just been in an argument or fight. This evidence supported the finding that she remained under the stress of the battery when she spoke to the dispatcher.

Her statements about the gun related to the domestic battery because they described the danger posed by her assailant during the incident for which she sought emergency police help. In response to questions about weapons involved, Portis identified a gun, repeatedly confirmed that she had seen one, and said she was positive. Even if the gun was not in Boyce's hand when he hit her, her awareness that a nearby assailant had access to a gun was naturally part of her account of the threat.

The court did not need to decide definitively whether the call also qualified as a present sense impression. Admission was independently justified by the excited-utterance exception, and the gun statement was corroborated by the officer's observation of Boyce discarding a handgun, the recovery of that gun, and the matching ammunition found in Boyce's pocket.

Issue #3

Whether the Armed Career Criminal Act enhancement was invalid because a jury did not find Boyce's prior convictions beyond a reasonable doubt.

Holding

No. The fact of a prior conviction remains an exception to the general rule requiring jury findings for facts that increase a mandatory minimum sentence.

Reasoning

Boyce relied on Alleyne v. United States, which held that facts increasing a mandatory minimum ordinarily must be submitted to a jury and proved beyond a reasonable doubt. But Alleyne expressly did not revisit Almendarez-Torres v. United States.

Almendarez-Torres holds that prior convictions need not be alleged in the indictment or proved to a jury beyond a reasonable doubt. The Seventh Circuit remained bound by that precedent unless and until the Supreme Court overrules it, so the district court could use Boyce's prior convictions to impose the Armed Career Criminal Act enhancement.

Concurrences

Judge Posner

Reasoning

Judge Posner agreed fully with the judgment and with the majority's legal analysis, but wrote to question the reliability-based premises of the present-sense-impression and excited-utterance exceptions. Portis's 911 call was important evidence and was hearsay because it was offered to prove that Boyce had a gun, yet it was admitted through exceptions that Posner regarded as poorly justified.

He rejected the premise that a statement made immediately after an event is unlikely to be fabricated. In his view, people routinely tell spontaneous lies, sometimes in less than a second, and cases allowing delays of ten, sixteen, or twenty-three minutes under the present-sense-impression exception make the supposed safeguard of immediacy still less persuasive.

Posner also disputed the premise that excitement makes a person's statements reliable. Excitement may reduce calculated self-interest, but it can also distort perception, memory, and judgment. Thus, an unreflective statement made under stress is not necessarily more accurate than an ordinary statement.

Rather than preserve a complicated hearsay regime built around historically entrenched categorical exceptions, Posner favored a broader reliability-centered approach resembling an expanded residual exception under Rule 807. Hearsay should be admitted, he suggested, when it is reliable, the jury can understand its strengths and limitations, and it materially improves the likelihood of a correct result.