U.S. v. Fortenberry, 89-4786

• Decision Date: 06 December 1990
• Docket Number: No. 89-4786,89-4786
• Citation: 919 F.2d 923
• Parties: 32 Fed. R. Evid. Serv. 281 UNITED STATES of America, Plaintiff-Appellee, v. Jeff Edward FORTENBERRY, Jr., Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 923

919 F.2d 923

32 Fed. R. Evid. Serv. 281

UNITED STATES of America, Plaintiff-Appellee, v. Jeff Edward FORTENBERRY, Jr., Defendant-Appellant.

No. 89-4786.

United States Court of Appeals Fifth Circuit.

Dec. 6, 1990.

Julie Ann Epps, Rienzi, Miss. (Court-appointed), for defendant-appellant.

Joe M. Hollomon, Asst. U.S. Atty., George Phillips, U.S. Atty., Jackson, Miss., for plaintiff-appellee.

Appeal from the United States District Court for the Southern District of Mississippi.

ON PETITION FOR REHEARING AND SUGGESTION FOR REHEARING EN BANC

(Opinion September 28, 1990, 5 Cir., 914 F.2d 671)

Before GEE and JONES, Circuit Judges, and LITTLE, ^* District Judge:

GEE, Circuit Judge:

This opinion addresses arguments raised by Jeff Edward Fortenberry on petition for rehearing. Our original opinion appears at 914 F.2d 671, and the facts and background are adequately set out there.

Evidentiary Concerns on Rehearing

Fortenberry raises three arguments to support his contention that we erroneously decided his appeal. First, Fortenberry contends that we made both factual and legal errors in evaluating his evidentiary complaints.

Factually, Fortenberry complains that we erred by applying the plain error standard of review to the admission of a list containing information allegedly designed to show Fortenberry's prior misconduct and to the admission of testimony by Ms. Warren that Fortenberry had threatened to detonate a bomb in her home.

In our original opinion, we noted that counsel for Fortenberry did not object to "the list or the bomb threat testimony at the time it was offered at trial[; thus], our review of their admission is limited to a search for plain error." Indeed, Fortenberry's counsel did not object at trial; however, at a preliminary hearing on Fortenberry's motion in limine, the trial judge did permit counsel for Fortenberry to enter a continuing or running objection to the list and the bomb threat testimony, instructing Fortenberry's counsel that objecting further, at trial, was unnecessary.

Our Court has recognized that a continuing objection granted by the court at trial will preserve error for appeal under Federal Rule of Evidence 103. See Ward v. Freeman, 854 F.2d 780 (5th Cir.1988), cert. denied, 490 U.S. 1065, 109 S.Ct. 2064, 104 L.Ed.2d 629 (1989); United States v. Marshall, 762 F.2d 419 (5th Cir.1985). Yet, we are troubled that the continuing objection was granted at a pretrial hearing. In general, evidentiary rulings depend in large part on the context in which the evidence is offered. Granting a continuing objection to evidence before the trial begins, thus precluding a re-evaluation of admissibility in context, seems ill advised; and we strongly caution both the district courts against granting and counsel against accepting pretrial continuing objections.

Despite our displeasure with the manner in which the continuing objection was granted, we are persuaded that Fortenberry's counsel relied on the trial court's instruction; thus, we must consider the admissibility of the list and the bomb threat testimony.

In ruling on the admissibility of the list and this testimony, the trial court had to consider whether the evidence was relevant to an issue other than character and whether the prejudicial effect of the evidence outweighed its probative value. See United States v. Beechum, 582 F.2d 898, 911 (5th Cir.1978) (en banc), cert. denied, 440 U.S. 920, 99 S.Ct. 1244, 59 L.Ed.2d 472 (1979). We may reverse the decision to admit the list and the bomb threat testimony only if the trial court clearly abused its discretion. See United States v. Vincent, 648 F.2d 1046, 1051 (5th Cir. Unit A 1981); Wright v. Hartford Accident & Indem. Co., 580 F.2d 809, 810 (5th Cir.1978); see also United States v. Johnson, 558 F.2d 744 (5th Cir.1977), cert. denied, 434 U.S. 1065, 98 S.Ct. 1241, 55 L.Ed.2d 766 (1978).

Respecting the list, the trial court explained that the list was being admitted as evidence of motive, intent, and plan. The trial court further observed that, in its judgment, the evidence did not show any overt bad act by Fortenberry. Turning to the bomb threat testimony, the trial court observed that the testimony (1) could also be considered evidence of plan, motive, and intent; (2) was circumstantial evidence of Fortenberry's knowledge of bombs; and (3) was circumstantial evidence of Fortenberry's possession of explosives as charged in Count II. Overall, the transcript of Fortenberry's motion in limine hearing indicates that the trial court carefully considered the relevance, probativeness, and prejudicial effect of the list and of the bomb threat testimony before deciding to admit them. While our original opinion doubts the relevance of this evidence and questions its probative value, here we review only for an abuse of discretion; and the abuse of discretion standard does not permit us to substitute our judgment for that of the trial court. In short, we cannot say that the trial court clearly abused its discretion by admitting either the list or the bomb threat testimony.

Furthermore, and as we noted in our original opinion, the admission of the list and the bomb threat testimony did not affect Fortenberry's substantial rights. This evidence comprised only a very small part of the Government's case against Fortenberry. The prosecutor used the list only for the permissible purpose of showing the plan, motive, and intent of Fortenberry to place the bomb on his ex-father-in-law's car and neither emphasized nor improperly referred to the list or to the bomb threat testimony in his arguments to the jury.

Fortenberry also contends that we made an error of law by concluding that the prosecutor's impeachment of Ms. Coker did not constitute reversible error. First, the admissibility of the impeachment testimony was not before us because Fortenberry's counsel did not (in any way) timely object to the prosecutor's questions. Second, the questions concerning Ms. Coker's Sunday school teaching and the frequency with which she had overnight male guests were relevant to her relationship with Ms. Warren. Ms. Warren and Ms. Coker attended the same church and were roommates. Ms. Warren's relationship with Ms. Coker and...