Bill Houston CARTER, Appellant, v. UNITED STATES of America, Appellee.
No. 76-1888.
United States Court of Appeals, Eighth Circuit.
Decided Feb. 10, 1977.
Rehearing Denied March 7, 1977.
Submitted Jan. 25, 1977.
W. H. Dillahunty, U. S. Atty. and Don N. Curdie, Asst. U. S. Atty., Little Rock, Ark., for appellee.
Before LAY, BRIGHT and WEBSTER, Circuit Judges.
PER CURIAM.
Bill Houston Carter aрpeals from his conviction of violating
The witness, William Darnell, testified that Carter had entered Darnell‘s drug store and asked Darnell to fill a prescription for Preluden, a narcotic. Over objections, the witness testified in direct examination that he recognized thаt the narcotics prescription was forged. The druggist filled the prescription, but advised Carter of a discrepancy in the prescription and asked him to wait until the police arrived so the matter could be straightened out. Carter turned and walked rapidly out of the front door and started to run away. The druggist obtained a revolver and gave chase. During the chase, apрellant abandoned the sack containing the Preluden and dropped a pistol over the side of a nearby retaining wаll. Carter was apprehended by Darnell and another pharmacist who had joined in the chase. The prosecution еstablished by other competent evidence that a pistol found behind the retaining wall had been in Carter‘s possession.
During cross-examination of Darnell, this witness admitted that he had not seen Carter drop his gun over the retaining wall. In response to defense counsel‘s questions, Darnell characterized Carter‘s presentation of the forged prescription as a felony:
Q Why didn‘t you look over the wall immediately when it fell?
A Well, sir, Mr. Carter had just committed a felony. There were a lot of things on my mind, and what he dropped over the wall wasn‘t one of them.
Thereafter, Carter‘s counsel moved for a mistrial. The court denied the mistrial but admonished the jury: “Whether he [Carter] did or didn‘t commit a crime [relating to narcotics] is no concern of yours, as I have explained to you. And it has to be totally ignored by you, * * * and the guilt or innocence of the defendant is in regard to the pistol and the pistol only.”
An exception exists to the general rule excluding evidence of other crimes which “permits the introduction of evidence of other criminal activity to complete the story of the crime on trial by proving its immediate context or the ‘res gеstae.‘” United States v. Howard, 504 F.2d 1281, 1284 (8th Cir. 1974). See also United States v. Cochran, 475 F.2d 1080, 1082-83 (8th Cir.), cert. denied, 414 U.S. 833 (1973); United States v. Stubblefield, 408 F.2d 309, 310 (6th Cir. 1969); McCormick, Evidence § 190 at 448 (2d ed. 1972); 1 Wigmore, Evidence § 218 at 719-722 (3d ed. 1940).1
In this case, the narration of the events immediately preсeding the chase and the discovery of the weapon behind the retaining wall, together with other corroborating evidenсe, served to establish that Carter had been in possession of the weapon. The evidence was admitted for a proper purpose.2 While this evidence did not go to prove motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident, those purposes as listed in 404(b) are not exclusive and the res gestae rule is well recognized. See 2 J. Weinstein & M. Berger, Weinstein‘s Evidence ¶ 404[08] at 405-45 (1975).
When the testimony is properly admitted, the court should give a limiting instruction. United States v. Calvert, 523 F.2d 895, 907 (8th Cir. 1975), cert. denied, 424 U.S. 911 (1976). Here, the reсord shows that the district court gave not one, but three, instructions to the jury
Affirmed.
LAY, Circuit Judge, dissenting.
I respectfully dissent.
Evidence of the sequence of events in the drug store which preceded the defendant‘s arrest was clearly admissible as relevant circumstances surrounding the proof that the defendant allegedly possessed the weapon as claimed by the government.
However this does not sanction a lay witness’ opinion that the defendant had “forged a narcotic prescription” оr that he had in fact committed a felony. This testimony was highly irregular and prejudicial. Defense counsel timely objected and gаve notice to the trial judge what might occur, and the judge should have limited the witness to a statement of facts. The witness should have been permitted to state simply that the prescription was irregular or improper in appearance and that this precipitated his conduct. His statements that the defendant had forged a prescription to obtain narcotics оr was guilty of a felony were not factually demonstrated.
Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delаy, waste of time, or needless presentation of cumulative evidence.
In today‘s society there can be nothing more prejudicial to a defendant in a criminal case than to suggest he is some way mixed up with narcotics. The defendant was indicted and charged with unlawful possession of a firearm. The government should be restricted to proof of that crime without an inflаmmatory suggestion of some other bizarre, unproven crime involving narcotics. The defendant was denied a fair trial and desеrves a new one.
LAY
Circuit Judge