United States v. King ( 1997 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 96-4952
MOSES KING,
Defendant-Appellant.
Appeal from the United States District Court
for the District of South Carolina, at Columbia.
Dennis W. Shedd, District Judge.
(CR-96-488)
Submitted: November 18, 1997
Decided: December 29, 1997
Before HALL and NIEMEYER, Circuit Judges, and
BUTZNER, Senior Circuit Judge.
_________________________________________________________________
Affirmed by unpublished per curiam opinion.
_________________________________________________________________
COUNSEL
Langdon D. Long, Assistant Federal Public Defender, Columbia,
South Carolina, for Appellant. J. Rene Josey, United States Attorney,
Marshall Prince, Assistant United States Attorney, Columbia, South
Carolina, for Appellee.
_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
_________________________________________________________________
OPINION
PER CURIAM:
Moses King appeals his convictions on two counts of possession
of a firearm by a convicted felon, 18 U.S.C.A. §§ 922(g)(1), 924(e)
(West 1994 & Supp. 1997). King's wife, who witnessed the two inci-
dents, refused to testify at trial, invoking the spousal privilege. How-
ever, statements she made to investigating officers were admitted
through the officers' testimony. King now raises various challenges
to the introduction of the officers' testimony about his wife's state-
ments. He also claims that the introduction into evidence of a gun
seized during the second incident violated the Fourth Amendment.
Finally, he challenges the determination that he was subject to sen-
tencing as an armed career criminal. We affirm.
I
The first incident occurred on January 28, 1995. Officers in Colum-
bia, South Carolina, responded to a 911 call from the King residence.
Mrs. King told the dispatcher that her husband had held her at gun-
point. The officers who responded to the call found Mrs. King to be
very agitated. King appeared, holding a shotgun. Mrs. King informed
the officers that her husband, who had a previous felony conviction
for murder, had pointed the gun at her.
On November 15, 1995, officers responded to another 911 call
from Mrs. King concerning a domestic dispute. When officers arrived
at the King home, Mrs. King was at the back of the house, waving
excitedly at the officers and saying, "he's back here . . . he's got a
gun." She told the officers that King had a gun in a bag he was carry-
ing and that she feared he would kill her. The officers seized the bag
from King. They felt the outside of the bag, touched a hard object that
might have been a weapon, looked inside the bag, and retrieved a
loaded pistol.
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The officers who responded to Mrs. King's calls testified at trial as
to what happened both times. They recounted Mrs. King's statements
to them. Mrs. King refused to testify, asserting her privilege against
adverse spousal testimony. Over King's objections, the district court
allowed the officers to testify about Mrs. King's statements, finding
that they either were not hearsay or were admissible as exceptions to
the general rule against hearsay.
II
King contends that admission of his wife's statements to the police
violated the privilege against adverse spousal testimony, as that privi-
lege is embodied in Fed. R. Evid. 501. However, Mrs. King's asser-
tion of the privilege only permitted her to refuse to testify against her
husband. The rule does not extend so far as to permit King to exclude
the officers' testimony about out-of-court statements made to them by
Mrs. King. See United States v. Archer, 733 F.2d 354, 359 (5th Cir.
1984).
III
King maintains that the officers' testimony about his wife's state-
ments to them constituted inadmissible hearsay. First, it is doubtful
that the statements were hearsay because the testimony arguably was
offered to show why the officers took the actions they did on each
occasion. See United States v. Love, 767 F.2d 1052, 1063 (4th Cir.
1985). To the extent that the statements were hearsay, they were
admissible as present sense impressions, see Fed. R. Evid. 803(1), or
as excited utterances, see Fed. R. Evid. 803(2). And, because the
statements were admissible under these firmly established hearsay
exceptions, their admission did not violate the Confrontation Clause.
See United States v. Shaw, 69 F.3d 1249, 1253 (4th Cir. 1995).
Finally, because the testimony was admissible, there was no error in
the prosecutor's mentioning Mrs. King's statements during opening
argument.
IV
King moves for leave to file a pro se supplemental brief. While we
grant the motion, we find that the contentions raised in the brief are
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without merit. King first asserts that officers violated the Fourth
Amendment when they retrieved the loaded gun from the bag he was
carrying during the November incident. However, Mrs. King had told
officers that her husband had threatened her and that the bag con-
tained a gun. This gave rise to a reasonable articulable suspicion that
criminal activity might be afoot. Under Terry v. Ohio, 392 U.S. 1(1968), the police acted appropriately when they stopped King, patted
him down, felt the bag, and opened it when they detected a hard
object that might have been--and indeed proved to be--a weapon.
See United States v. Williams, 962 F.2d 1218, 1223 (6th Cir. 1992).
The district court sentenced King as an armed career criminal, 18
U.S.C. § 924(e), because he had three prior convictions for violent
felonies. King's presentence report states that he was convicted in
1991 of the assault and battery of his wife. King maintains that he
actually was convicted of disorderly conduct, a misdemeanor. The
presentence report reveals that King was convicted in 1968 of murder
and in 1969 of kidnapping. These clearly constitute violent felonies.
In 1963, King broke into a business at night and stole some tools. He
was convicted of housebreaking and larceny. Under Taylor v. United
States, 495 U.S. 575, 599 (1990), this offense--generic burglary--is
also a violent felony for purposes of the § 924(e) enhancement.
Because King had three prior convictions for crimes of violence, any
error in the presentence report concerning the assault and battery con-
viction was harmless.
King argues that his prior kidnapping conviction is too old to qual-
ify him for treatment as an armed career offender. All three prior con-
victions may be used because there is no time restriction on
consideration of prior convictions under the Armed Career Criminal
Act. See United States v. Presley, 52 F.3d 64, 69 (4th Cir. 1995).
King also argues that his criminal history category was improperly
calculated. He contests the assault and battery conviction and chal-
lenges the use of an old conviction for kidnapping. His argument is
unavailing because the Sentencing Guidelines set an armed career
criminal's offense level at 34 and set his criminal history category at
level VI when "the defendant used or possessed the firearm . . . in
connection with a crime of violence." U.S. Sentencing Guidelines
Manual § 4B1.4(b)(3)(A) and (c)(2). King's conduct qualifies under
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these sections. His wife told officers that King threatened her and
pointed a loaded gun at her on January 28, 1995.
V
We accordingly affirm the convictions and sentence. We dispense
with oral argument because the facts and legal contentions are ade-
quately presented in the materials before the court and argument
would not aid the decisional process.
AFFIRMED
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