U.S. v. Cook
| Decision Date | 30 June 1976 |
| Docket Number | No. 75-2413,75-2413 |
| Citation | 538 F.2d 1000 |
| Parties | 1 Fed. R. Evid. Serv. 272 UNITED STATES of America v. Nathan Earl COOK and Larry James Phelps. Appeal of Larry James PHELPS. |
| Court | U.S. Court of Appeals — Third Circuit |
Joseph A. Hurley, Sullivan, Hurley, Farnan & Falasca, Wilmington, Del., for appellant.
W. Laird Stabler, Jr., U. S. Atty. by John H. McDonald, Asst. U. S. Atty., Wilmington, Del., for appellee.
Before MARIS, ADAMS and HUNTER, Circuit Judges.
Larry Phelps was tried for armed robbery of a bank. In response to questions about a possible firearms violation, the government, in order to disabuse the jury of any notion that Phelps might legally possess a gun, introduced evidence that Phelps had previously been convicted of sodomy, and thus by possessing a pistol at the time of the arrest was in violation of federal statutes. 1 It is the admissibility of the evidence regarding the crime of sodomy that must be assessed on this appeal.
On February 19, 1975, a bank in Delaware was robbed by a lone gunman, who then fled in a car driven by another man. The gunman, Nathan Cook, was picked up by police forty-five minutes later, while operating a car owned by Phelps. Later that night Phelps himself was arrested in Maryland. At the time of his arrest, he was in possession of a large amount of cash. In the automobile in which Phelps was a passenger, the police found a pistol that matched the description of the gun that had been used in the bank robbery.
Cook confessed that he had participated in the bank robbery and when his confession was upheld, he pleaded guilty. Thereafter, Phelps' trial took place and Cook testified that a third man, Robert Acker, had been his accomplice in the robbery. Cook also said that he owned two identical pistols: one he had used in the robbery, and the other had been taken from him by Phelps.
The only evidence produced against Phelps, aside from his possession of the pistol and cash, 2 was testimony to the effect that (1) Phelps and Cook had been together the night before the robbery and the two had left together the next morning; and (2) Phelps was arrested in the company of a woman to whom Cook had relayed a message after being detained by police following the bank robbery. 3 Acker's wife was the sole defense witness at Phelps' trial. She testified to having heard Acker, while under the influence of alcohol, speak about participation in a bank robbery.
During the cross-examination of the federal agent who had arrested Phelps and discovered the pistol, the defense attorney asked the agent whether it was a federal crime to transport an unregistered firearm across state lines. The agent answered that it was not, and further testified that the seized pistol appeared to be a legal weapon. The defense attorney next asked whether it was against Maryland law to carry a concealed weapon. The agent answered affirmatively, adding that there were criminal penalties for such conduct.
On redirect, the prosecutor began to ask, "Assuming that the defendant here had been at the time (he possessed the gun) a convicted felon . . . ," but was interrupted by an objection. At side bar the prosecutor argued that the defense had opened the door to questions regarding the lawfulness of Phelps' possession of the gun, and that evidence of prior crimes by Phelps had become admissible to rebut the impression that Phelps had broken no laws by having the pistol. 4 The defense counsel asserted that his general inquiry concerning the firearms laws was theoretical and not made in reference to the defendant.
The trial court then allowed the government to place before the jury state court records showing Phelps to have been convicted of sodomy prior to his possession of the gun. Those records also indicated that Phelps had been in prison for an undisclosed offense at the time of the sentencing on the sodomy conviction. After admitting these documents, the trial judge stated to the jury:
As I understand the record, there was an effort by defense counsel to bring out that the possession by this Defendant of a firearm under United States law was not illegal. The government then offered to prove that if a person who carried a gun had a record of a felony, it was illegal. And I permitted the introduction of the record of this Defendant, a record of a felony, conviction of a felony on the part of this Defendant, solely for the purpose of putting before you the fact that a convicted felon cannot legally under U.S. law be in the possession of a firearm. Do you understand that it has nothing to do with the guilt of this Defendant in this case as charged whatever. It is simply to refute the impression given that there was nothing illegal under U.S. law for this Defendant to have had this firearm in his possession. It was for the sole purpose of showing that in fact if he were a convicted felon he couldn't legally under United States law carry this firearm. That's the sole purpose for which (t)his evidence is admitted.
After the jury returned a verdict of guilty, Phelps filed a timely appeal. We reverse and remand for a new trial on the ground that the trial court abused its discretion, in the particular circumstances of this case, by permitting evidence of the sodomy conviction to go before the jury.
Phelps points to the general rule against admission of evidence of other crimes, and contends that the government did not meet its burden of showing the relevancy and materiality of the questionable evidence. He further argues that the government failed to demonstrate that the probative value of the evidence outweighed its extraordinarily high potential for unfair prejudice.
The government asserts that the evidence was made relevant when the defense posed the question regarding the lawfulness of Phelps' possession of the gun. It claims the right to introduce the prior conviction in order to negate the inference of innocent possession. The prosecutor concludes that the admission of such evidence is committed to the discretion of the trial judge, and is not reversible in the absence of an abuse of discretion.
In recent decades the common law rule against the introduction of proof of other crimes has been so greatly eroded that the exclusion of such evidence has become the exception to the general rule permitting the admission of evidence of other crimes if it is relevant to a material issue at trial. Thus, this Court has stated:
"Evidence of other offenses may be received if relevant for any purpose other than to show a mere propensity of disposition on the part of the defendant to commit the crime." 5
A similar statement has recently been adopted in Rule 404(b) the Federal Rules of Evidence. 6
The expanded admissibility of evidence of other crimes has not, however, rendered the traditional rule a completely dead letter. Rather, the proliferation of exceptions has caused the courts to adopt a less mechanical balancing test in order to preserve the fundamental rule: 7
. . . the trial judge may, in the exercise of his sound discretion, exclude evidence which is logically relevant to an issue other than propensity if he finds that the probative value of such evidence is substantially outweighed by the risk that its admission will create a substantial danger of undue prejudice. 8
The Fifth Circuit has outlined some of the considerations relevant to the balancing process:
9
This balancing test is the modern bastion of a long standing tradition that protects a criminal defendant from "guilt by reputation" 10 and from "unnecessary prejudice." 11 Because the weighing entails competing interests, it is delicate, and must be employed with care lest accommodation to the prosecutor's needs result in subverting a principle that is central to our concept of fairness. 12 We are not the first Court to caution against allowing the exceptions to swallow this important rule. 13
Normally evidence of other crimes becomes admissible to prove some aspect of the offense charged, such as motive, opportunity, intent, preparation, plan, or absence of mistake or accident. 14 Another recognized purpose, however, is to dispel an exculpatory implication implanted by the defense attorney during cross-examination of the prosecution's witnesses. 15
Where, as here, evidence of other crimes is relevant to a collateral issue only, the trial court must consider the government's actual need for that evidence. The necessity for the testimony in question must be measured against the high potential that proof of a prior offense has for arousing the jury against the accused. 16 To apply these precepts, it must be recognized that there are substantial possibilities, in the context of this case, that a jury will harbor strong adverse sensitivity to evidence of homosexual or deviant behavior. This creates a significant "risk" of "undue prejudice" which must be overcome by a showing of necessity by the government. 17
In the situation here, evidence of other crimes was of little probative value to the government's case. The cross-examination attempted by defense counsel had already disclosed that the possession of the gun by Phelps probably constituted a state criminal offense. The defense has not, as the government asserts, created an inference that Phelps was lawfully in...
To continue reading
Request your trial
-
U.S. v. Herman
...of issues, and needless presentation of cumulative evidence. United States v. Long, 574 F.2d 761 (3d Cir. 1978); United States v. Cook, 538 F.2d 1000 (3d Cir. 1976). While in most instances we would defer to the district judge's sound discretion concerning a rule 403 issue, See United State......
-
U.S. v. Martinez
...for defense counsel to suggest in closing that Garrett's absence was inconsistent with guilt. Nor is this case like United States v. Cook, 538 F.2d 1000, 1005 (3d Cir.1976), in which the court found that it was unfairly prejudicial to have disclosed that the defendant's prior conviction was......
-
State v. Bishop
...Cir.1978), cert. denied, 440 U.S. 945, 99 S.Ct. 1422, 59 L.Ed.2d 634 (1979).146 See O'Shea, 724 F.2d at 1516.147 535 F.2d 950.148 538 F.2d 1000 (3d Cir.1976).149 538 F.2d at 1004-05; 535 F.2d at 956.150 717 P.2d 1325 (Utah 1986).151 Id. at 1335.152 734 P.2d 913, 919 (Utah 1987).153 680 P.2d......
-
Lesko v. Owens
...issue, of the prejudice which may eventuate from admission, and of the public policies involved is in order ..."); United States v. Cook, 538 F.2d 1000, 1004 (3d Cir.1976) ("This balancing test is the modern bastion of a long standing tradition that protects a criminal defendant from 'guilt......