USA v. Dorell Collier

FILED
U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
JUNE 30, 2010
JOHN LEY
CLERK
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 09-13323
Non-Argument Calendar
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D. C. Docket No. 08-21020-CR-MGC
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
DORELL COLLIER,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Florida
_________________________
(June 30, 2010)
Before TJOFLAT, EDMONDSON and WILSON, Circuit Judges.

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PER CURIAM:
Dorell Collier appeals his conviction for being a felon in possession of a
firearm, 18 U.S.C. § 922(g)(1). No reversible error has been shown; we affirm.
On appeal, Collier challenges the district court’s admission of certain
evidence. We review a district court’s evidentiary rulings for an abuse of
discretion. United States v. Eckhardt, 466 F.3d 938, 946 (11th Cir. 2006). We will
reverse an evidentiary ruling only if it affected the defendant’s substantial rights;
that is, “where an error had no substantial influence on the outcome, and sufficient
evidence uninfected by error supports the verdict, reversal is not warranted.”
United States v. Hawkins, 905 F.2d 1489, 1493 (11th Cir. 1990).
Collier first challenges the testimony of a police officer that, shortly after
Collier was arrested, a woman approached the officer and told the officer that she
was the person who called 911. Collier contends that this statement was
inadmissible hearsay and created the prejudicial inference that the police had
arrested the correct man because the caller did not say otherwise. The statement
also allowed the government to elicit testimony that the caller seemed nervous,
which supported its contention that Collier was a dangerous and threatening
person.
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Here, sufficient evidence -- unaffected by the caller’s statement -- existed to
sustain Collier’s conviction. This evidence included that (1) someone called 9111
to report that a black boy wearing a white shirt with red and white pants and a
black headband had a gun in his pocket and might shoot someone in a convenience
store; (2) police officers approaching the store observed a black man wearing a
white shirt and red and white shorts among a crowd of people; (3) the man, later
identified as Collier, broke away from the crowd and started running when he saw
the police; (4) officers followed Collier until he hid behind a concrete pillar; (5)
after the officers issued many verbal commands, Collier came out with his hands
up; (6) an officer discovered a firearm -- that contained one bullet in the chamber --
where Collier was arrested; and (7) Collier later told the officers that the only
reason he did not kill one of the officers was because he had only one bullet; and
he knew that if he shot one of the officers, then the other officer would kill him.
So, on these facts, even accepting Collier’s contentions about inadmissible
evidence as true, we cannot say that the admission of the hearsay statement and
accompanying inference constituted reversible error.2
If the officer’s testimony about the 911 caller’s out-of-court statement was offered to1
prove the truth of the matter asserted (that is, that she was the person who called 911), then the
statement was seemingly inadmissible hearsay. See Fed.R.Evid. 801.
We also note that the inference that the officers arrested the correct man is not apparent2
from the statement about the 911 call. The caller did not identify Collier as the suspect, but
simply identified herself as the person who called 911.
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Collier also argues that the district court should not have allowed testimony
about a separate alleged threat -- that Collier told the officers he would remember
them and kill them with an AK47 he had in his house -- that Collier made to the
arresting officers after he was taken to the county jail. Collier contends that this
threat bore no relevance to the firearm possession with which he was charged and
that admission of the threat was unduly prejudicial.
Here, on cross-examination of one of the arresting officers, Collier inquired
about the contents of the police reports, including whether the reports contained the
threat (about the gun containing only one bullet) that Collier made to officers when
he was arrested or that Collier had fled on foot. At one point, Collier’s counsel
asserted “[t]here is no indication of any threats in the report?” Then, on redirect
examination, the government asked about what threats the reports did contain; and
the officer then testified about Collier’s threat to kill them with an AK47.
We see no error in the district court’s admission of this evidence upon that
court’s conclusion that Collier opened the door to the evidence. While extrinsic
evidence of prior bad acts is inadmissible to prove a defendant’s character to show
conduct in conformity therewith, see Fed.R.Evid. 404(b), “inadmissible extrinsic
evidence is admissible on redirect [examination] as rebuttal evidence, when
defense counsel has opened the door to such evidence during cross-examination,”
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see United States v. West, 898 F.2d 1493, 1500 (11th Cir. 1990).
And defense counsel opened the door here. On appeal, Collier contends that
his line of questioning was about only the “one bullet” statement and, thus,
permissible impeachment because this statement was not in the police reports. But
Collier’s counsel questioned the officer about many omissions and inaccuracies in
the police reports, including asserting that the report contained no indication of
“any threats.” Thus, Collier opened the door for the officer to testify on redirect
examination about the threats the reports did contain. The district court abused no
discretion in admitting the testimony.3
AFFIRMED.
We also note that sufficient evidence existed, as noted above, to sustain Collier’s3
conviction independent of the admitted threat. See Hawkins, 905 F.2d at 1493.
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