7th Circuit on Restoring Civil Rights, Hearsay Exceptions
Darnell Boyce was convicted of five state felonies in 1991, and served concurrent sentences. After he served his sentences and was on supervised release, he was arrested and convicted of unlawful use of a weapon. As a result, he returned to prison, and his supervised release was revoked. After he was released for the unlawful use of weapon charge, he received a letter restoring his civil rights to vote and hold state office.
In 2010, Boyce's girlfriend called 911 shortly after a domestic violence incident, in which she told the operator that Boyce had a gun. When police arrived on the scene, Boyce ran away, and was observed throwing a gun. A gun was found in the area where he threw the object, and when searched he was found to have ammunition on him.
Boyce was charged with being a felon in possession of a firearm , and being a felon in possession of ammunition. At trial, the girlfriend's 911 call was admitted into evidence under the "present sense impression" and "excited utterance" exceptions to the hearsay rule. A jury found him guilty, and because of three of his past felony convictions he received a sentence over the mandatory minimum -- 17.5 years -- under the Armed Career Criminal Act .
Restoration of Civil Rights
Boyce argued that he was entitled to carry a firearm because his civil rights had been restored. The Seventh Circuit disagreed because the letter did not restore the rights for all of his felonies, just the more recent unlawful use of a weapon. The court noted that letters restoring civil rights apply "conviction by conviction," and thus did not apply for the first five state felonies he committed.
Next, the court had to determine whether the trial judge properly admitted Boyce's girlfriend's 911 call under the present sense impression and excited utterance exceptions. The court, though hesitant in noting the viability of the exceptions, adhered to overwhelming precedent that admitted such testimony. The court found that though there may have been an issue with the 911 call admitted as a present sense impression, that nonetheless it was admissible as an excited utterance.
Judge Posner's Concurring Opinion
Judge Posner agreed with affirming the trial court's decision, as well as the majority opinion. He wrote separately to express his discontent with the present sense impression and excited utterance exceptions stating, "It's time the law awakened from its dogmatic slumber."
- What's a Maximum Sentence for Purposes of Armed Career Criminal Statute? (FindLaw's U.S. Seventh Circuit Blog)
- Court Can Accept Lay Testimony for Witness Identification (FindLaw's U.S. Seventh Circuit Blog)
- MMG Fin. Corp. v. Midwest Amusements Park, LLC, 08-4060 (FindLaw's U.S. Seventh Circuit Blog)
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