United States v. Calvin Starr ( 2023 )

United States Court of Appeals
For the Eighth Circuit
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No. 22-2331
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United States of America
lllllllllllllllllllllPlaintiff - Appellee
v.
Calvin Starr, also known as Calvin Herman Starr
lllllllllllllllllllllDefendant - Appellant
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Appeal from United States District Court
for the Eastern District of Missouri - St. Louis
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Submitted: December 12, 2022
Filed: January 19, 2023
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Before SMITH, Chief Judge, ARNOLD and STRAS, Circuit Judges.
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ARNOLD, Circuit Judge.
While on supervised release after pleading guilty to being a felon in possession
of a firearm, see 18 U.S.C. §§ 922(g)(1), 924(a)(2), Calvin Starr reportedly assaulted
his girlfriend and therefore violated conditions of his release. At the ensuing
revocation hearing, the government did not call Starr's girlfriend to testify but instead
related her statements through a different witness. Starr maintains that the
government's introduction of this hearsay denied him his due-process right to
confront adverse witnesses. Because any error the district court1 may have committed
in allowing the government to introduce this hearsay was harmless, we affirm.
Starr's probation officer informed the court that she believed the assault
violated three conditions of his supervised release, the most serious of which was that
he not commit another crime, and she recommended that the court revoke Starr's
supervision. At the revocation hearing, the government called St. Louis County police
officer Matthew Wilkinson to the stand. He testified that while on patrol one day he
received a radio call asking him to respond to a domestic assault, so he met a woman,
A.D., at a church a few blocks from her home. When the government asked
Wilkinson what A.D. had told him, defense counsel objected and invoked Starr's due-
process right to confront witnesses against him. The court overruled the objection
with no explanation other than to say, "[i]t is a revocation hearing." Wilkinson then
related what A.D. had told him.
After hearing from additional witnesses and hearing argument from the parties,
including additional argument about how introduction of A.D.'s hearsay statements
violated due process, the court again overruled Starr's objections and concluded that
it was "reasonably certain, by a preponderance of evidence, that the violations have
been committed by Mr. Starr." The court determined that, since the assault violated
Mo. Rev. Stat. § 565.073.1(1) and was a crime of violence, see United States v.
Montgomery, 701 F.3d 1218, 1222 (8th Cir. 2012), Starr had committed a Grade A
violation of his release conditions, see USSG § 7B1.1(a)(1), resulting in a Guidelines
range of 18–24 months' imprisonment. The court revoked Starr's supervised release
and sentenced him to 24 months.
1
The Honorable Ronnie L. White, United States District Judge for the Eastern
District of Missouri.
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We review de novo Starr's contention that the district court denied him the right
to confront adverse witnesses. See United States v. Coleman, 7 F.4th 740, 744 (8th
Cir. 2021). Though defendants do not receive the "full panoply" of rights at
revocation proceedings that they receive at trial, they do have the due-process right
to confront adverse witnesses unless there's "good cause" for not allowing
confrontation. See id. at 744–45; see also Fed. R. Crim. P. 32.1(b)(2)(C). The parties
dispute whether the government demonstrated good cause for not allowing Starr to
confront A.D., but we need not settle this dispute because any violation of Starr's
rights was harmless. When considering whether an error was harmless in this context,
we have consistently said that the government must offer "sufficient evidence, apart
from the hearsay statements, to prove by a preponderance of the evidence that [Starr]
violated the conditions of his supervision." See, e.g., United States v. Timmons, 950
F.3d 1047, 1051–52 (8th Cir. 2020). We hold that the government has done so here.
In addition to relating A.D.'s statements, Wilkinson testified that, upon meeting
A.D., he saw a knot forming over her eyebrow and that she had scrapes and
lacerations on her shoulder and shoulder blade and a little mark on her neck.
According to Wilkinson, paramedics evaluated A.D. and determined that she might
have sustained a broken arm or shoulder, and so they transported her to a hospital.
The government also called a detective with the St. Louis County Police
Department to the stand. He testified that he recorded an interview that he conducted
with Starr about a week after the alleged incident. During that interview, which was
admitted into evidence and played in large part for the court, Starr admitted that on
the day in question he and A.D. "got into an argument" but denied that "licks" were
ever thrown. He did confirm that things "got physical," though, and that they "kind
of tussled, like a little wrestling, a little hair pulling, a little pushing." He also
admitted that they fell down during this argument after he "bear hugged her" and
picked her up. He said that it was possible that A.D. may have hit her head or face
when they fell and that "maybe it's a possibility" she had gotten hurt "if it was a hard
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enough fall," but he pointed out that A.D. had already stated that she needed medical
attention for her hands and feet before their altercation. During this interview he also
admitted that he sent A.D. text messages while she was en route to the hospital. One
message read, "U Got the police called on me u dead bitch[.] Exactly y I told u about
that outside shit if I go to jail I better move on my son[.]" The other said, "if them
muthafuckers get my name u dead on god." Finally, Starr's probation officer testified
that twelve days after the incident she saw a bandage on Starr's hand. When she asked
him about it, he said "he was just play fighting with a partner," and when she asked
what he meant by "partner," he said "Well, a friend that I just wrestle with." We think
there is enough in the record to show by a preponderance of the evidence that Starr
committed the alleged violation.
Starr maintains that this evidence shows at most that he recklessly assaulted
A.D., see Mo. Rev. Stat. § 565.073.1(2)–(3), not that he knowingly did so. The
distinction matters, he says, because a crime that can be committed recklessly does
not constitute a crime of violence, see United States v. Kent, 44 F.4th 773, 777 (8th
Cir. 2022), and so he committed at most a grade B violation, not a grade A violation.
So he says his Guidelines range should have been lower than the one the district court
calculated. But we disagree with Starr that the record, stripped of A.D.'s hearsay
statements, leads merely to the conclusion that he harmed A.D. recklessly. We look
to Starr's "actual conduct in determining the grade of his supervised release
violation." See United States v. Schwab, 85 F.3d 326, 327 (8th Cir. 1996) (per
curiam). His admitted participation in a physical altercation with A.D., coupled with
the apparent injuries that resulted and the threatening messages sent in the immediate
aftermath, supports a reasonable inference that he intentionally or knowingly
committed the assault. So the government has offered sufficient evidence apart from
A.D.'s statements to prove by a preponderance of the evidence that Starr committed
a grade A violation of the conditions of his supervision. See Timmons, 950 F.3d at
1051–52.
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Affirmed.
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