U.S. v. Halk

• Decision Date: 11 March 2011
• Docket Number: No. 10–2381.,10–2381.
• Parties: UNITED STATES of America, Plaintiff–Appellee,v.John William HALK, Defendant–Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

634 F.3d 482

84 Fed. R. Evid. Serv. 1323

UNITED STATES of America, Plaintiff–Appellee,

v.John William HALK, Defendant–Appellant.

No. 10–2381.

United States Court of Appeals, Eighth Circuit.

Submitted: Jan. 14, 2011.Filed: March 11, 2011.

Christopher A. Pickett, St. Louis, MO, for appellant.Michael A. Bert, AUSA, St. Louis, MO, for appellee.Before MURPHY, HANSEN, and MELLOY, Circuit Judges.MELLOY, Circuit Judge.

John Halk was convicted by a jury of one count of being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1). The district court ¹ sentenced Halk to fifty-one months' imprisonment. Halk appeals his conviction, arguing the district court abused its discretion in admitting certain evidence and in preventing Halk from offering certain other evidence. We affirm.

I.

A grand jury returned a one-count indictment charging Halk with being a felon in possession of a firearm “[o]n or about July 29, 2008.” At trial, Halk stipulated to his felon status. The government's main witnesses were St. Louis police officers Charles Johnson and Mark McMurry. According to the testimony of these two officers, about a week prior to July 29, 2008, Detective Johnson received a tip that drugs were being sold from the front porch area of 4829/4827 St. Louis Avenue. The neighborhood around this address was known to police as a high-crime area. At around 7:00 p.m. on July 29, 2008, Detectives Johnson and McMurry proceeded together with a third officer to 4829/4827 St. Louis Avenue to investigate the tip.

All three officers were in an unmarked police car and were dressed in plain clothes; however, over their clothes, each wore a black vest bearing the word “police” in large letters across the front and back. As they pulled up, there were four men sitting on the front porch at 4829/4827 St. Louis Avenue. These four men were later identified to be Halk, George Robbins, Sr., George Robbins, Jr., and Brian McAfee. As the police officers exited the car, Halk stood up with his right hand underneath his shirt, walked up the steps and went into the house. Upon seeing Halk heading toward the front door, McMurry ran around the house to the rear entrance.

As Halk proceeded across the porch toward the front door of 4827 St. Louis Avenue, Johnson observed him pull a gun from underneath his shirt. As Halk entered the front door, Johnson saw him toss the gun to his right side. Johnson followed Halk into the building and observed a gun on the floor off to the right just inside the door. He seized the gun and made it safe by removing the ammunition. Halk attempted to exit through the rear door, but upon meeting McMurry there, he turned back. Johnson then arrested him.

At trial, the government sought to introduce evidence of Halk's prior firearms offenses. An inquiry into Halk's criminal record revealed that on May 12, 1989, he pleaded guilty to murder in the second degree and armed criminal action and was sentenced to fifteen years' imprisonment. He was released on parole on April 23, 1999. On February 7, 2000, he was arrested for unlawful use of a weapon after a police officer observed him holding a shotgun. No charges resulted, but Halk's parole was revoked. He was finally released from prison on August 6, 2002.

The district court held a pre-trial hearing which addressed Halk's motion in limine regarding the admissibility of his 1989 conviction for armed criminal action and 2000 arrest for unlawful use of a weapon. The government argued that this evidence was admissible to show intent and knowledge under Federal Rule of Evidence 404(b). Defense counsel argued that the prior firearms offenses were too remote in time, unfairly prejudicial, and not relevant. The district court held that the evidence was admissible to show intent and knowledge, but disallowed any mention of the word “murder” as unfairly prejudicial.

At trial, the district court gave the jury a limiting instruction, cautioning them that they could only consider Halk's previous firearms offenses to help them decide motive, intent, knowledge, or absence of mistake or accident. Immediately thereafter, the government read the following to the jury:

It shall be taken as proven that on May 12th, 1989, the defendant was convicted of a felony offense of armed criminal action in that on or about the 19th day of July, 1988, the defendant committed a felony offense, by, with, and through the use, assistance, and aid of a deadly weapon, namely a firearm.

The government then called St. Louis police officer David Berryman, who testified regarding Halk's February 7, 2000, arrest for unlawful possession of a firearm.

Halk planned to call George Robbins, Sr. as a witness for the defense. Prior to trial, Robbins, Sr. had sent a letter to the district court stating that, “Mr. Halk didn't know about the gun, I'm standing up, I'm taking responsibility for it, he didn't know anything about it, and I hope this doesn't hurt me on the papers I'm on.” ² After consulting with a court-appointed attorney, however, Robbins, Sr. chose to exercise his Fifth Amendment right not to testify. Consequently, Halk sought to introduce the testimony of Thomas Hinton, an investigator for the Federal Defender, regarding statements that George Robbins, Sr. had made when Hinton interviewed him on October 9, 2009, and November 3, 2009. The district court allowed Halk to make an offer of proof, according to which Hinton would have testified that Robbins, Sr. told him that Halk got up to go to the bathroom just before the police officers arrived at 4829/4827 St. Louis Avenue, that Halk did not have a gun in his hands when he walked into the house, and that Robbins, Sr. later saw the gun Detective Johnson recovered from inside the house and recognized it as belonging to his son, George Robbins, Jr. Defense counsel argued that these statements were admissible under Rule 807 and also under Rule 804(b)(3) as statements against penal interest. The district court disagreed and ruled that Hinton's proffered testimony was inadmissible hearsay.

During the same side-bar conference, defense counsel informed the district court that he had also been planning to call Chris Brockemeyer, an investigator for a local defense attorney, to testify as to out-of-court statements made by George Robbins, Jr., who was by then deceased. Defense counsel indicated that Brockemeyer would have testified that Robbins, Jr. told him the gun found by Detective Johnson belonged to his father, Robbins, Sr. Defense counsel argued that the statements were admissible under Rule 807. The district court ruled that this testimony, also, was inadmissible hearsay, and Brockemeyer was not called to testify.

II.

A. Rule 404(b) evidence

Rule 404(b) of the Federal Rules of Evidence prohibits the use of evidence of a defendant's other crimes, wrongs, or bad acts to prove the character of a person in order to show action in conformity therewith. Fed.R.Evid. 404(b); United States v. Trogdon, 575 F.3d 762, 766 (8th Cir.2009). But the rule permits the admission of such evidence to prove “motive, opportunity, intent, preparation, plan, knowledge, identify or absence of mistake or accident.” Fed.R.Evid. 404(b); United States v. Oaks, 606 F.3d 530, 538 (8th Cir.2010). To be admissible, other crimes evidence must be (1) relevant to a material issue raised at trial, (2) similar in kind and close in time to the crime charged, (3) supported by sufficient evidence to support a jury finding the defendant committed the other act, and (4) of probative value not substantially outweighed by its prejudicial effect. Oaks, 606 F.3d at 539. “We review a district court's decision to admit such evidence for an abuse of discretion, and will reverse only when the evidence clearly had no bearing on the case and was introduced solely to prove the defendant's propensity to commit criminal acts.” United States v. Walker, 470 F.3d 1271, 1274 (8th Cir.2006) (internal quotation marks omitted).

Here, the government offered the 1989 conviction for armed criminal action because Halk committed the crime while carrying a firearm. Likewise, the government offered the 2000 arrest for unlawful use of a weapon because Halk was arrested for carrying a shotgun. According to the government, this evidence was relevant to prove Halk's knowledge and intent. Halk contends that his prior firearms offenses were not relevant to prove knowledge and that intent was not at issue at trial. Knowing possession of a firearm is an element of 18 U.S.C. § 922(g)(1), and Halk “placed his knowledge of the firearm's presence at the scene on his person at issue by pleading not guilty to the crime and requiring the government to prove his guilt beyond a reasonable doubt.” Oaks, 606 F.3d at 539; see also Walker, 470 F.3d at 1274. “Evidence that a defendant possessed a firearm on a previous occasion is relevant to show knowledge and intent.” Walker, 470 F.3d at 1274. Halk's prior firearms offenses address the material issue of his knowledge of the presence of the firearm and his intent to possess it. See id. (holding the defendant's prior conviction for armed robbery “addresse[d] the material issue of his knowledge of the presence of the firearm and his intent to possess it”).

Next, Halk contends that the district court abused its discretion by allowing evidence of the 1989 conviction because it was not close in time to the instant offense. “To determine if evidence is too remote, the court applies a reasonableness standard and examines the facts and circumstances of each case.” United States v. Strong, 415 F.3d 902, 905 (8th Cir.2005) (internal quotation marks omitted). “[T]here is no fixed period within which the prior acts must have occurred.” United States v. Baker, 82 F.3d 273, 276 (8th Cir.1996). We have generally been reluctant to uphold the introduction of evidence relating to acts or crimes which occurred more than thirteen years prior to the conduct challenged. Strong, 415 F.3d at 905....