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852 F2d 366 United States v. R Shurn

852 F.2d 366

UNITED STATES of America, Appellee,
v.
Larry R. SHURN, Appellant.

No. 87-2368.

United States Court of Appeals,
Eighth Circuit.

Submitted May 12, 1988.
Decided July 26, 1988.

C. Clifford Schwartz, Clayton, Mo., for appellant.

J. Bennett Clark, St. Louis, Mo., for appellee.

Before FAGG, Circuit Judge, BRIGHT, Senior Circuit Judge, and NICHOL,* Senior District Judge.

PER CURIAM.

1

Larry R. Shurn appeals from his conviction of possessing a controlled substance with intent to distribute in violation of 21 U.S.C. Sec. 841(a)(1). We affirm.

2

Shurn first argues the record contains insufficient evidence to support his conviction. We disagree. Viewing the evidence in the light most favorable to the Government, see United States v. Shurn, 849 F.2d 1090, 1093 (8th Cir.1988), we find the record evidence more than sufficient to support Shurn's conviction.

3

Shurn also contends the district court committed error by refusing two of his proposed instructions relating to possession. We conclude the court adequately instructed the jury. See id. at 1096.

4

Shurn asserts that evidence taken from his home was illegally seized. Clearly, the officers had the limited authority to enter Shurn's residence to execute a warrant for Shurn's arrest. See Payton v. New York, 445 U.S. 573, 602-03, 100 S.Ct. 1371, 1388-89, 63 L.Ed.2d 639 (1980). When the officers arrived, they knocked at the front door and announced their purpose and identity. No one answered, and the officers forcibly entered the residence. Once lawfully inside, the officers properly seized the evidence under the plain view doctrine. See United States v. Newton, 788 F.2d 1392, 1394-95 (8th Cir.1986).

5

Shurn next argues there was a systematic exclusion of blacks from the jury panel in violation of his rights under the sixth amendment. In addition, he contends the court committed error in refusing to strike three people from the jury panel for cause. Again, we disagree. We find no evidence in the record to support Shurn's assertion on jury composition other than an affidavit from his attorney. Further, Shurn has not provided the court with a transcript of the jury voir dire. We find Shurn's arguments here meritless. See Shurn, 849 F.2d at 1096.

6

Finally, Shurn argues the district court abused its discretion in allowing rebuttal testimony by the Government and in denying his request for a mistrial. Shurn based his request for a mistrial on "prosecutorial excesses." We find the district court did not abuse its discretion on either issue. Nevertheless, we caution the Government that in prosecuting cases it cannot continually edge toward the point of excess or misconduct.

7

We have thoroughly considered all of Shurn's contentions, and we conclude they are without merit. Accordingly, we affirm.

*

The HONORABLE FRED J. NICHOL, Senior United States District Judge for the District of South Dakota, sitting by designation