United States v. Chauncey Lee Jones
491 F.2d 526
8th Cir.
1973
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*2 heroin content. Laughlin, Urbandale, Iowa, Michael J. presented case was appellant. through testimony Crosby, of Detective Donielson, Atty., Allen L. U. S. Des government agents partici- other pated who Moines, Iowa, appellee. trip in the to the where the area purchase gener- was made conducted Before STEPHENSON operation, al surveillance Judges. WEBSTER, laboratory chemist. STEPHENSON, Judge. testify did not in his own behalf, but offered the of wit- appeal This from a conviction for pool nesses connected with who distributing challenges hall heroin eviden- appel- had seen rulings tiary by made court. One pool lant in the hall alleged the errors involves admission question. Appellant also offered the tes- envelope into evidence of the lock seal timony of character witnesses. Infor- containing the heroin with notations by appellant mant Mitchell was called gov- thereon as to the conclusions of the briefly and testified to the effect that ernment chemist. Another was ad- he but on know cross- report mission into evidence of a de- scribing examination conceded had him purchase he seen which is mailed quite along a few times. with the evidence to the laborato- guilt strong ry. The evidence of alleged was Similar errors were and dis- sufficiency support thereof in cussed United Mar- States William challenged. verdict Parker, (CA8 cellus 491 F.2d 517 this Exhibits charged in a one count distributing charges indictment heroin on that the court 1972. The evidence disclosed erred in into evidence over his hearsay objection envelope that date Detective Gene A. the lock seal Crosby Metropolitan of the St. Louis Po- with the chemist’s notations thereon as Department lice Moines, Des his conclusions with assignment Drug Iowa under to the contents therein. claims Program; Abuse Law Enforcement similar error in the evi admission into Crosby accompanied by alleged report concerning informant Ed- dence of a ward Mitchell1 accompanied driven other the evi agents pool vicinity to a laboratory hall in the dence to the and the bottom University, Moines, portion 11th and Des Iowa chemist’s contains Crosby ap- where Mitchell introduced the substance involved.2 Crosby departing, shortly testified that before in 2. The exhibits were filled out after occurred, strip formant Mitchell was searched because the events described Crosby it was not then certain that could buys. make the pool in the hall had never been were similar ex- These exhibits question; had the transaction v. before hibits described spo- only supra, Parker, but had sub- before William once; in the hall to him and was date as this cause. ken mitted the same approximately They five ten minutes. further de- not be therefore Crosby testified re-direct examination scribed herein. *3 days four be- on that charges prejudicial error in disputed sale, he had “observed the fore of these exhibits the the admission appellant a transaction with Mr. light of this decision court’s promptly to moved Mitchell.” 260 v. 1961); highly it was strike the answer because accord, incompetent, irrelevant, and immaterial The 1231 responded, am prejudicial. “I The court of Sanchez has been dis- thrust redirect, proper but that it isn’t not sure in Parker and the same will not cussed going to motion sustain the am to repeated. be here may go strike it. out.” It out of the requested to be heard then presence distinguisha- Sanchez is We find that urged jury that a of the and Here, the instant as ble Parker, ease. declared, granted, if not and mistrial be the exhibits were received jury the to admonish the court should until the who made witnesses Crosby. disregard given by the answer the entries had testified with denied for mistrial was The motion thereto. jury with in accordance the admonished We further note the chain of request. appellant’s handling custody suspect- the particularly challenged, in de- ed substance was find no abuse of discretion We nying the in the cross-examination of mistrial. We chemist. the motion for disregarded file also indicates that assume that the ignore an- his motion for new trial below contended the court’s instruction to that “the was broken stricken. chain swer (lock thus, enve- the exhibit seal It should also be noted that the erroneously lope) admitted into evi- disputed recognized that dence.” Under these circumstances it proper as be admissible answer not an abuse of discretion transcript redirect examination. trial court to send the exhibits to the jury.3 appel that on cross-examination reveals Crosby’s probing ability to lant was appel an make accurate identification Prior Transaction an was consistent with his lant. This urges rely Finally appellant on an alibi.4 nounced intention to granting trial court erred in announced de his mo followed this offering govern tion for mistrial fense later witnesses who based on the introducing appel ment’s action in had not concerning prior observed lant hall where the transaction general between and informant Mitch was made ell. involved.5 Lewis, cross-examination of In United Detective 1970) developed that “Evi- we held fact that Hearing Hearing Report prior Report 3. The 4. The Omnibus indicated Omnibus rely parties attempt “Defendant will an alibi.” indicated “will stipulate custody.” a chain of Had this been Upon done the court we would find it sanction the close of the evidence difficult procedure appellant’s alibi here included an instruction followed. defense. may prior conduct dence con- for rehear ing stitute a crime is rehearing, admissible banc as a (1) motive, (2) intent, relevant is ordered that for re accident, (3) the absence of or mistake and it den embracing (4) plan ied.* a common scheme or commission two or more crimes so proof related to each other that of one other, (5)

stands to establish the identity

the commission of crime on trial. * * * (Citing cases) Whether the STATES probative value of such evidence out- weighes potential prejudice its *4 generally defendant addresses itself to William Marcellus PARKER, Appellant. judge (citing the trial discretion of cases).” STATES of Here have ad been v. identity.6 on the issue of

mitted JONES, Appellant. not abuse its discretion Nos. 73-1138, 73-1194. striking denying the evidence mis a trial. United States Court Appeals, In the final the evidence of 3, Jan. strong. Appellant’s alibi de- May 13, Denied Certiorari fense was weak. We are satisfied that See 94 S.Ct. 2396. appellant has failed to demonstrate error requiring reversal. On Petition for En Banc

Affirmed. ROSS, Judges, BRIGHT and Circuit separate statement of views on Judge, HEANEY, (dissent- Circuit rehearing. ing). against We vote a respectfully dissent reasons because circumstances these cases my set forth in dissent United States indicate that the errors in Parker, 491 F.2d v. William questioned nonprejudicial. exhibits were (CA8, filed this Judge Vogel, writing v. Unit- 260, ed 293 F.2d On Petition for 1961), aptly states the er- law that ordinarily Court ror and reversible error containing banc filed receive an “a exhibit neat and, being fully appellant, condensation whole pe- it is against ordered that (Emphasis case the defendant.” tition for original.) Id., 269, quoting at denied, Ware, 698, States 247 F.2d 841(a) requires Simon, 111, Since 21 § U.S.C. ed “knowingly be or inten- tionally” violating the Act and the instructed, possibly so was also of BRIGHT admissible, within the discretion of court, knowledge the issue and intent. en bane and for dissent of LAY and 101, 108- to denial of re- 1971) ; also, page n. 8 see Unit- & infra.