U.S. v. Gilmore

• Decision Date: 30 April 1984
• Docket Number: No. 83-1898,83-1898
• Citation: U.S. v. Gilmore, 730 F.2d 550 (8th Cir. 1984)
• Parties: 15 Fed. R. Evid. Serv. 721 UNITED STATES of America, Appellee, v. Dennis Michael GILMORE, Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 550

730 F.2d 550

15 Fed. R. Evid. Serv. 721

UNITED STATES of America, Appellee, v. Dennis Michael GILMORE, Appellant.

No. 83-1898.

United States Court of Appeals Eighth Circuit.

Submitted Nov. 17, 1983.

Decided March 30, 1984.

Rehearing Denied April 30, 1984.

Thomas E. Dittmeier, U.S. Atty., Debra E. Herzog, Asst. U.S. Atty., St. Louis, Mo., for appellee.

Law Offices of J. Martin Hadican by J. Martin Hadican and Joyce Yulkey MacDonald, Clayton, Mo., for appellant.

Before JOHN R. GIBSON and FAGG, Circuit Judges, and HUNTER, ^* Senior District Judge.

ELMO B. HUNTER, Senior District Judge.

Dennis Michael Gilmore appeals from his conviction for knowingly and intentionally distributing approximately 54 grams of cocaine, a Schedule II narcotic drug controlled substance in violation of 21 U.S.C. 841(a)(1). Gilmore contends that the district court erred in four respects: (1) in allowing in evidence testimony of prior drug dealings between a government witness and the defendant; (2) in failing to instruct the jury on defendant's theory of defense; (3) in failing to instruct the jury on the credibility of witnesses with a bias and prejudice and/or hostility toward defendant; and (4) in highlighting certain evidence at the expense of other evidence in the trial. For the reasons set forth below we affirm the judgment of the district court.

The evidence adduced during the trial established that on November 16, 1982, John Perdue was arrested for distribution of heroin by Robert M. Zambo, Jr., a St. Louis police officer who was assigned to the Drug Enforcement Administration. Thereafter, Perdue agreed to cooperate with the Drug Enforcement Administration by assisting in making cases against other persons. In return for his cooperation, Zambo would make that cooperation known to the United States Attorney and to any judge before whom Perdue might subsequently appear.

After he had begun cooperating with the Drug Enforcement Administration, Perdue told Zambo that he had purchased cocaine from Gilmore prior to his arrest and agreed to arrange such a purchase from Gilmore. Perdue telephoned Gilmore in an attempt to arrange a purchase of cocaine. This conversation was monitored by Zambo, but the conversation was not tape recorded. Perdue testified that Gilmore said he would get in touch with Perdue by telephone the next day.

Perdue testified that six telephone calls between himself and Gilmore occurred during the next seven days, the substance of which was that Gilmore would telephone him at 3:00 p.m. on November 30, 1983, to arrange the cocaine sale. None of the six telephone calls was recorded or overheard by a Government Agent. Perdue did advise Zambo of the calls.

Pursuant to a telephone discussion with Perdue, Zambo went to Perdue's residence at about 2:30 p.m., on November 30, 1982. When Perdue did not receive a telephone call from Gilmore at 3:00 p.m., Perdue telephoned Gilmore at his place of employment and left a message for Gilmore to telephone him. A few minutes later, Gilmore telephoned Perdue and they agreed to meet on the parking lot of O'Connell's restaurant. This telephone call was recorded and monitored by Zambo. The recording of the call was admitted into evidence as Government's Exhibit 1 and was played for the jury.

Perdue drove alone in his car to O'Connell's restaurant and Zambo followed in his car. After arriving at O'Connell's, Perdue parked his car and entered Gilmore's car. He and Gilmore exchanged money and cocaine and Gilmore told him he perhaps had one more ounce that Perdue might be able to obtain in the near future. Perdue then exited Gilmore's car and Gilmore drove away. Perdue walked over to Zambo's car and gave Zambo a clear plastic sandwich bag containing a substance later found to be cocaine. Zambo had also parked on O'Connell's parking lot. From his position, he could not see what had transpired in Gilmore's car. He did, however, monitor and record the conversation which occurred therein between Gilmore and Perdue and that recording was introduced in evidence as Government's Exhibit 2 and played for the Jury.

(1) Appellant claims that the trial court erred in allowing Perdue and Zambo to testify concerning prior drug dealings between Perdue and Gilmore. The challenged testimony of Perdue in context, was as follows:

Q. During that time period, did you have occasion to know a man by the name of Dennis Michael Gilmore?

A. Yes, sir.

Q. Do you see the man in the courtroom here today known to you as Dennis Michael Gilmore.

A. Yes, sir, I do.

Q. Would you point him out and indicate the clothing he's wearing, please?

A. Gray suit, white shirt, table over here.

Mr. Poehling: May the record show he has indicated the defendant, your Honor.

The Court: How did you describe his clothing?

The Witness: White shirt, gray shirt.

Q. (By Mr. Poehling) Well, in order--since we have two gentlemen here, as you look at them, are you referring to the gentleman on the left or the gentleman on the right?

A. The gentleman on the right.

The Court: With or without a vest?

The Witness: With a vest.

The Court: Thank you very much.

Mr. Poehling: May the record indicate identification?

The Court: The record will indicate identification.

Q. (By Mr. Poehling) Did your relationship with Dennis Michael Gilmore involve cocaine?

A. Yes, sir, it did.

Q. Did you in fact have a series or a history of dealing in terms of--or buying, rather, buying cocaine from Dennis Michael Gilmore?

A. Yes, sir.

Mr. Hadican: One moment, your Honor, just one moment, please. I object to that line of questioning.

May we approach the bench, please. (Bench discussion, off the record, out of the hearing of jury.)

The Court: Objection overruled. Was there an answer to the question? (Answer read by reporter.)

Q. (By Mr. Poehling) Final Question: Approximately how many times had you engaged in transactions where you purchased cocaine from Dennis Michael Gilmore?

A. About five, perhaps six.

The contested testimony of Zambo reads as follows:

Q. Would you tell the ladies and gentlemen of the jury what a debriefing is?

A. Debriefing is sitting down with the individual obtaining all names of people that he knows are associated with drugs, people who he has dealt with, how long he has known them and what type of drug they are distributing.

Q. Was that done with Mr. Perdue?

A. Yes, sir, it was.

Q. Was that done by yourself and other officers?

A. Yes, sir, it was.

Q. During the course of the debriefing, did the name Dennis Michael Gilmore come up?

A. It did.

Q. And was that brought--who brought that name up?

A. Mr. Perdue?

Q. And did he relate some information to you concerning prior transactions he may or may not have had with the defendant?

Mr. Hadican: Your Honor, we want to renew the previous objection.

The Court: Will be overruled

A. Yes, sir, he did.

Q. After you received that information, what happened relative to the defendant?

A. We decided to have Mr. Perdue make a phone call or be involved in a phone call with Mr. Gilmore and attempt to obtain a quantity of cocaine from Mr. Gilmore.

The government is precluded from introducing evidence of a defendant's prior criminal acts to establish his character, but may offer such evidence to prove motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident. Fed.R.Evid. 404(b). A trial judge acts within his sound discretion in admitting evidence of prior wrongful acts when (1) the evidence is relevant to an issue in question other than that of the character of the defendant, (2) there is clear and convincing evidence that the defendant committed the prior acts, and (3) the potential unfair prejudice of the evidence does not substantially outweigh its probative value. United States v. Evans, 697 F.2d 240, 247-48 (8th Cir.1983). Broad discretion is afforded the trial judge in deciding whether to admit wrongful act evidence and his decision will not be overturned absent a clear showing that the requirements have not been met. Id. at 248.

In this case the bench discussion that took place following objection ¹ by the defense was off the record, and there was no explicit ruling following the unrecorded discussion. Nonetheless, we will assume that the court was well aware of the standards for admitting prior wrongful act evidence. Although an explicit ruling is preferable, a ruling of admissibility under these circumstances carries with it an implicit ruling that the standards have been met. United States v. Evans, 697 F.2d at 248.

Appellant first claims that there was no material issue raised which necessitated the introduction of the prior drug dealings evidence. By pleading not guilty, the defendant put the government to its proof on all elements of the charged crime, including intent, knowledge, and identity. The challenged testimony supports the...