United States v. Terrence Dean

Filing

PER CURIAM OPINION FILED - THE COURT: Diana E. Murphy, Lavenski R. Smith and Duane Benton (PUBLISHED) [4399034] [15-2359]

United States Court of Appeals
For the Eighth Circuit
___________________________
No. 15-2359
___________________________
United States of America
lllllllllllllllllllll Plaintiff - Appellee
v.
Terrence Anthony Dean
lllllllllllllllllllll Defendant - Appellant
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Appeal from United States District Court
for the Southern District of Iowa - Des Moines
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Submitted: January 15, 2016
Filed: May 16, 2016
[Published]
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Before MURPHY, SMITH, and BENTON, Circuit Judges.
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PER CURIAM.
A jury convicted Terrence Anthony Dean of being a felon in possession of a
firearm, in violation of 18 U.S.C. §§ 922(g)(1), 924(a), and 924(d). The district court1

1

The Honorable Stephanie M. Rose, United States District Judge for the
Southern District of Iowa.

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sentenced Dean to 72 months' imprisonment. Dean appeals his conviction and
sentence, arguing that the district court erred in admitting prior statements of a witness
at trial and in applying a four-level enhancement under U.S.S.G. § 2K2.1(b)(6)(B) for
possession of a firearm in connection with another felony. We affirm.
I. Background
On the evening of December 27, 2013, Dean, a felon, was drinking alcohol at
the apartment that he shared with his daughter, Myishia Maxwell. Maxwell and her
friend, Tiffany Bass, were present at the apartment, caring for seven minor children.
Maxwell was seven months pregnant. Maxwell and Bass both saw Dean, who was
drunk, shoot a handgun outside. Maxwell, Bass, and Dean then went to the grocery
store together, but Dean returned to the apartment separately. When Dean returned to
the apartment, Maxwell was cooking. Dean began playing music loudly in the living
room. Maxwell complained about the noise level, and a fight ensued between the two.
Dean entered the kitchen and cursed in Maxwell's face. Maxwell threw a handful of
shredded cheese at Dean, and Dean responded by grabbing Maxwell's skillet and
hitting her with it. Bass witnessed the altercation.
Maxwell, who was bleeding, left the apartment and called 911. She reported
that Dean had struck her in the face with a skillet, had been waving a gun around, and
had the gun in his pocket. When police arrived, Maxwell was outside of the apartment.
Visibly upset and injured, Maxwell told officers that Dean had a gun and that they
would find the gun if they searched for it. Police performed a consent search of the
home and located a loaded Cobra .32 caliber handgun wrapped in a white towel,
hidden under aluminum cans inside a garbage can. Officers also observed taco
meat—the skillet's contents—splattered against the kitchen walls.
Maxwell provided a written statement indicating that Dean "[h]ad a gun [and]
sh[o]t 2 time[s] [i]n [the] air" and also "[p]icked up a pot [and] hit [Maxwell] [i]n [her]
head," resulting in "food [going] all over [Maxwell's] kitchen." She also stated that
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Dean "then h[e]ld [the] gun in [the] air," making her "feel like he could have h[ur]t the
kids or [Maxwell]." Officers arrested Dean without incident. Maxwell subsequently
appeared before the grand jury pursuant to a subpoena, where she testified
consistently with her written statement and recorded statements to officers. She further
stated that the gun that police seized was the same gun that Dean had been waving
around and shooting earlier that night.
Dean was detained at the Polk County Jail pending trial. While there, he called
his sister and instructed her to influence the testimony of Maxwell and Bass. In some
of the calls, Dean told his sister to make sure that Maxwell convinced Bass not to
testify at all. In others, Dean coached his sister about what she and Maxwell should
say if they were to testify.
Trial began on April 6, 2015.2 When the jury was unable to reach a verdict, the
court declared a mistrial. A second trial began on April 20, 2015. During the second
trial, Dean called Maxwell as a defense witness after the government rested. On direct
examination, she stated multiple times that she never saw Dean with a gun on the
night in question. On cross-examination, the government established that Maxwell's
statements at trial were inconsistent with her prior statements in the 911 call, her prior
recorded oral statements to officers, her prior written statement to police, and her prior
grand jury testimony. The government used these prior statements to impeach
Maxwell. On redirect, Maxwell was again asked whether she "saw [her] father with
a gun that night," and she shook her head. When Dean's counsel instructed her to
answer yes or no, Maxwell replied, "I don't remember." Dean's counsel then attempted
to introduce as prior consistent statements Maxwell's statements from the first trial in
which she testified that she did not see her father with a gun. The government
objected, arguing that "[t]he timing of the statement makes it problematic, . . . as it
was not made before there was improper influence or motive to fabricate." After a

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Dean went to trial after the district court rejected a plea agreement.
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sidebar conference, the court denied Dean's request, concluding that the statements did
not pre-date Maxwell's motive to fabricate as required by Federal Rule of Evidence
801(d)(1)(B)(i).
The court later clarified that the 911 call, the grand jury transcript, and
Maxwell's statements at the scene, as recorded by an officer's body microphone, were
admissible as substantive evidence pursuant to Rule 801(d)(1)(A). Maxwell's written
statement was not formally admitted during the trial but was instead used solely for
impeachment purposes. Over the government's objection, the court instructed the jury
regarding Maxwell's prior testimony at the first trial and
t[ook] judicial notice of the fact that on April 6th of 2015, after taking an
oath and testifying under penalty of perjury in another proceeding,
Myishia Maxwell testified that she did not see a gun on December 27th
of 2013 and did not ever see her father in possession of a gun on that
day. You may consider this evidence along with everything else in the
case.
The jury returned a guilty verdict.
Prior to sentencing, the probation office prepared a presentence investigation
report (PSR). The PSR recommended application of a four-level enhancement under
U.S.S.G. § 2K2.1(b)(6)(B) for the use or possession of a firearm in connection with
another felony offense. Dean objected to application of the enhancement, denying the
presence of a firearm and denying that an assault occurred. The parties agreed that
Dean did not directly threaten Maxwell with the firearm and was not brandishing the
gun at the moment that he hit Maxwell with the skillet.
At sentencing, the district court found by a preponderance of the evidence that
Dean committed an aggravated misdemeanor assault, which is a felony under federal
law, when he struck Maxwell with the skillet. The district court relied on "the grand
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jury testimony which came in substantively of Myishia Maxwell; the written statement
to the police that she made on December 27th of 2013 which came in and was used
for impeachment purposes . . . ; as well as the 911 call which came in at both trials."
The district court found that this trial evidence established that
Mr. Dean grabbed a hot, heavy, cast iron skillet full of hot taco meat off
the stove, used it to hit his very pregnant daughter in the head, caused her
a head injury, then ripped the telephone out of the wall so she couldn't
call for law enforcement. And while that's going on, he's got a gun in his
pocket, and she knows it, and she reports it within, you know, seconds
or minutes of the assault happening and while she's still bleeding. She
flees the house. She's clearly worried about the gun and reports it
immediately to the police.
The district court concluded that the gun was "present and known" during "an
aggravated misdemeanor level assault" and therefore "either facilitat[ed] or could have
facilitated that assault." Specifically, the court noted "that Ms. Maxwell kn[ew] of [the
gun], kn[ew] her father ha[d] it on him, and kn[ew] the violent nature of her dad,
who[] tr[ied] to prevent her from calling for help and who ha[d] just hit her in the head
with a cast iron skillet." The court found that Dean had brandished and discharged the
same gun earlier in the night, "mak[ing] those facts even more complicated." Finally,
the district court noted that Maxwell's written statement indicated that Dean "was
waving a gun in the air at the time of the assault in the kitchen." Based on this
evidence, the district court found that a four-level enhancement pursuant to U.S.S.G.
§ 2K1.2(b)(6)(B) was applicable. After calculating the applicable Guidelines range
and discussing the factors in 18 U.S.C. § 3553(a), the district court sentenced Dean
to 72 months' imprisonment.

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II. Discussion
Dean argues that the district court erred in admitting Maxwell's prior statements
and in applying the four-level enhancement under U.S.S.G. § 2K2.1(b)(6)(B) for
possession of a firearm in connection with another felony.
A. Prior Statements
The district court admitted Maxwell's grand jury testimony, 911 call, and
statements at the scene, as recorded by an officer's body microphone, as substantive
evidence. "We review a district court's ruling on the admissibility of evidence for
abuse of discretion." United States v. Thetford, 806 F.3d 442, 446 (8th Cir. 2015)
(citation omitted).
1. Grand Jury Testimony
At trial, Maxwell repeatedly testified on direct examination that she never saw
Dean with a gun the night that he assaulted her. Those statements squarely
contradicted her prior grand jury testimony that (1) she saw her father with the
firearm, (2) he discharged that firearm, (3) she heard the firearm go off, and (4) the
gun that the police recovered from the apartment was the same gun that her father was
firing.
"[P]rior inconsistent statements by a witness are not hearsay and are competent
as substantive evidence if the declarant testifies at trial and is subject to
cross-examination concerning the statement, and the prior inconsistent statement was
given under oath at a 'trial, hearing, or other proceeding.'" United States v. Wilson, 806
F.2d 171, 175–76 (8th Cir. 1986) (quoting Fed. R. Evid. 801(d)(1)(A)). "The district
court has considerable discretion in determining whether prior statements are
inconsistent with trial testimony." United States v. Matlock, 109 F.3d 1313, 1319 (8th
Cir. 1997) (citing United States v. Russell, 712 F.2d 1256, 1258 (8th Cir. 1983) (per
curiam); United States v. Thompson, 708 F.2d 1294, 1302 (8th Cir. 1983) ("The

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district court should have considerable discretion to determine whether evasive
answers are inconsistent with statements previously given." (citation omitted))).
"In Wilson, we held a prior inconsistent statement given by a witness under
oath during a grand jury proceeding could be used as substantive evidence." United
States v. Cervantes, 646 F.3d 1054, 1060 (8th Cir. 2011) (citing Wilson, 806 F.2d at
175–76). Wilson controls. At trial, Maxwell confirmed that she testified before the
grand jury "under oath subject to penalty of perjury."
Despite Wilson, Dean argues that her testimony on redirect examination that
she could not remember whether Dean had a gun on the night of the assault is not
inconsistent with her grand jury testimony. This argument fails. The district court had
already properly admitted the grand jury testimony on cross-examination because it
directly contradicted Maxwell's testimony on direct examination. Moreover,
Maxwell's testimony on redirect examination that she did not remember whether Dean
had a gun on the night of the assault is inconsistent with her prior grand jury testimony
that he did have a gun. "In applying Rule 801(d)(1)(A), 'inconsistency is not limited
to diametrically opposed answers but may be found in evasive answers, inability to
recall, silence, or changes of position.'" Matlock, 109 F.3d at 1319 (emphasis added)
(quoting Russell, 712 F.2d at 1258 ("Polin's statement on the stand that he could not
recall having any contact with Russell around the time he cashed the forged postal
money orders is sufficiently inconsistent with his grand jury testimony for the trial
court to admit the previous testimony.")).
Accordingly, we hold that the district court did not err in admitting Maxwell's
prior grand jury testimony as a prior inconsistent statement pursuant to Rule
801(d)(1)(A).

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2. 911 Call and Recorded Body-Microphone Statements
The district court initially ruled that the 911 call was admissible as a present
sense impression and excited utterance but that the recorded body-microphone
statements could be used only for impeachment purposes; however, the court
ultimately ruled that both categories of evidence could be admitted as substantive
evidence under the present-sense-impression and excited-utterance exceptions to the
hearsay rule.
Federal Rule of Evidence 803(1) provides that "[a] statement describing or
explaining an event or condition, made while or immediately after the declarant
perceived it" is "not excluded by the rule against hearsay." "The underlying rationale
of the present sense impression exception is that substantial contemporaneity of event
and statement minimizes unreliability due to defective recollection or conscious
fabrication. There is no per se rule indicating what time interval is too long under Rule
803(1) . . . ." United States v. Hawkins, 59 F.3d 723, 730 (8th Cir. 1995) (alteration
in original) (quotations and citations omitted), vacated on other grounds, 516 U.S.
1168 (1996).
In Hawkins, the defendant argued that the district court abused its discretion
in admitting the victim's "911 call because the contents of the tape are inadmissible
hearsay" and contended that the victim had time to fabricate her story. Id. at 730. We
held that the victim's "statements from the 911 tape were admissible as a 'present sense
impression' under Rule 803(1)." Id. We explained that the victim's "911 call was
placed with sufficient contemporaneity to the underlying events to be admissible
under Rule 803(1)." Id. Specifically, we noted that the occupants of the apartment
adjacent to the victim's apartment placed a 911 call prior to the victim's call,
complaining about a disturbance in the victim's apartment. Id. The victim then placed
her 911 call seven minutes later from a nearby store, stating that "'my husband just
pulled a gun out on me.'" Id. (citation omitted). We pointed out that "[o]ther courts
have held in similar circumstances that statements on 911 tapes are admissible as a
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present sense impression." Id. (citing United States v. Mejia–Valez, 855 F. Supp. 607
(E.D.N.Y. 1994) (holding that tapes of two 911 calls, the first 2 to 3 minutes after the
shooting and the other approximately 16 minutes after shooting, were sufficiently
contemporaneous with the event and therefore admissible as present sense
impressions); United States v. Campbell, 782 F. Supp. 1258, 1260–61 (N.D. Ill. 1991)
(holding statements on 911 tape admissible as present sense impression where call
was made almost immediately after the defendant left the store after a shooting
incident); Bemis v. Edwards, 45 F.3d 1369, 1372 (9th Cir. 1995) (holding that, under
certain circumstances, statements on a 911 tape may be admissible as a present sense
impression)). Additionally, we determined that the victim's statements were reliable
based on the victim's ability to describe details during her call; specifically, "she was
able to describe the gun in some detail" and "stated that there was someone else in the
apartment with her husband." Id.
Similar to the victim in Hawkins, Maxwell described the assault in detail during
the 911 call, reporting that Dean had struck her in the face with a skillet, had been
waiving a gun around, and currently had the gun in his pocket. Also, Maxwell's "911
call was placed with sufficient contemporaneity to the underlying events," see id., as
she made the call while she was still bleeding from the assault. Likewise, Maxwell
made her subsequent statements in the officer's body microphone immediately after
hanging up from the 911 call during a time when she was visibly upset and injured.
In the statements captured by the body microphone, Maxwell, consistent with the 911
call, reported that Dean had a gun and that the officers would find the gun if they
searched for it.
Because Maxwell's 911 call and recorded statements occurred with sufficient
contemporaneity to the assault and evidence reliability, we hold that the district court

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did not err in admitting them under the present-sense-impression exception to the
hearsay rule pursuant to Rule 803(1).3
B. U.S.S.G. § 2K2.1(b)(6)(B)
Dean argues that the district court procedurally erred in finding that a four-level
sentencing enhancement pursuant to U.S.S.G. § 2K2.1(b)(6)(B)4 applied for Dean's
purported use or possession of a firearm in connection with another felony offense.
Dean contends that the evidence was insufficient to establish that another felony
occurred. Alternatively, he argues that even if another felony occurred, insufficient
evidence exists that the firearm facilitated or had the potential to facilitate the felony.
We need not resolve whether the district court clearly erred in applying the
four-level enhancement pursuant to § 2K2.1(b)(6)(B). See United States v. Holm, 745
F.3d 938, 940 (8th Cir. 2014) (reviewing for clear error whether the evidence

3

Because we hold that the district court did not err in admitting the evidence
under Rule 803(1), we need not address whether the evidence was likewise admissible
under the excited-utterance exception pursuant to Rule 803(2).
4

Section 2K2.1(b)(6)(B) provides:

(6) If the defendant—
***
(B) Used or possessed any firearm or ammunition in
connection with another felony offense; or possessed or
transferred any firearm or ammunition with knowledge,
intent, or reason to believe that it would be used or
possessed in connection with another felony offense,
increase by 4 levels. If the resulting offense level is less
than level 18, increase to level 18.
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supported the district court's finding that a firearm was possessed "in connection with"
a felony). On this record, any error in applying the enhancement was harmless.
"We have held that it is permissible for sentencing courts to offer alternative
explanations for their sentencing decisions and that, in some circumstances, such
explanations may serve to prove other identified sentencing errors harmless." United
States v. Sayles, 674 F.3d 1069, 1072 (8th Cir. 2012) (citing United States v. Straw,
616 F.3d 737, 742–43 (8th Cir. 2010) ("Where the record clearly . . . show[s] not only
that the district court intended to provide an alternative sentence, but also that the
alternative sentence is based on an identifiable, correctly calculated guidelines range,
any error in applying an enhancement for number of victims is harmless." (alterations
in original) (quotations and citations omitted))). Relevant to the present case, "we have
found harmless sentencing error when a court specifically identifies the contested
issue and potentially erroneous ruling, sets forth an alternative holding supported by
the law and the record in the case, and adequately explains its alternative holding." Id.
(citing, inter alia, Straw, 616 F.3d at 742 ("Incorrect application of the Guidelines is
harmless error where the district court specifies the resolution of a particular issue did
not affect the ultimate determination of a sentence." (citation omitted)).
That is precisely what the district court did here. In imposing Dean's sentence,
the district court explained that it had considered all of the factors under § 3553(a),
including the instant offense, Dean's history and characteristics, and its determination
of "a fair and reasonable sentence in light of all of the circumstances of the case." The
district court cited "a number of troubling aspects" in Dean's case, such as Dean's
"violent assault" against Maxwell, who was pregnant, while minor children were
present. The court also referenced Dean's ripping the phone out of the wall to prevent
Maxwell from calling for help, his waving around of the gun, and his discharging of
the gun earlier in the day when he was intoxicated. After discussing these "serious
matters," the court then discussed Dean's "obstructive efforts" to influence Maxwell's
testimony. Thereafter, the court noted Dean's "long history of alcoholism and at one
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point . . . very heavy crack use and . . . dabbl[ing] in other drugs here and there."
Finally, the court discussed Dean's extensive criminal history.
"[H]aving considered all of those factors," the district court sentenced Dean to
72 months' imprisonment. After imposing sentence, the court made clear that it would
have imposed the same sentence even without the four-level enhancement under
§ 2K2.1(b)(6)(B), stating:
I will tell you that had I ruled differently on these adjustments or
on the criminal history point category, I would likely have varied
upward, in fact would have varied upward to that same sentence. When
this case originally came to me and I started looking at it, the reason I
rejected the 24 months [in the original plea agreement] was because I
just didn't see it as appropriate given the facts of the case, and I still don't
see 24 months as an appropriate sentence in this case. I do think six years
is the appropriate sentence in this case, no matter whether we reach it
through the guidelines or we reach it through the statute.
(Emphases added.)
In summary, "even assuming [that the court erred in applying the four-level
enhancement under § 2K2.1(b)(6)(B)], any such error was harmless. The district court
clearly identified the contested . . . issue, sought and discussed facts as necessary to
support its broader sentencing decision, and adequately explained its overall sentence
applying 18 U.S.C. § 3553(a)." See Sayles, 674 F.3d at 1072.
III. Conclusion
Accordingly, we affirm the judgment of the district court.
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