Carter v. U.S., 76-1888
| Citation | 549 F.2d 77 |
| Decision Date | 07 March 1977 |
| Docket Number | No. 76-1888,76-1888 |
| Parties | 1 Fed. R. Evid. Serv. 644 Bill Houston CARTER, Appellant, v. UNITED STATES of America, Appellee. |
| Court | United States Courts of Appeals. United States Court of Appeals (8th Circuit) |
G. Steven Napper, North Little Rock, Ark., for appellant.
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.
Bill Houston Carter appeals from his conviction of violating 18 U.S.C. § 922(h)(1), for unlawfully receiving a firearm which had been transported in interstate commerce after he had been previously convicted of a crime punishable by imprisonment for a term exceeding one year. Carter contends on this appeal that the district court committed prejudicial error in permitting a witness, a druggist, to testify that immediately preceding Carter's apprehension, Carter had presented the druggist with a forged prescription for narcotic drugs. Appellant argues that the admission of this testimony of another crime was of such prejudicial effect that a mistrial should have been granted on appellant's motion. Given the factual context of this case, we reject this contention and affirm the conviction.
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 that 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, appellant abandoned the sack containing the Preluden and dropped a pistol over the side of a nearby retaining wall. Carter was apprehended by Darnell and another pharmacist who had joined in the chase. The prosecution established 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:
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 gestae.' " 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, 94 S.Ct. 173, 38 L.Ed.2d 68 (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 preceding the chase and the discovery of the weapon behind the retaining wall, together with other corroborating evidence, 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 P 404(08) at 405-45 (1975).
When the testimony is properly admitted, the court should give a limiting instruction. United...
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