U.S. v. Weir

• Decision Date: 17 May 1978
• Docket Number: 77-1709,Nos. 77-1708,s. 77-1708
• Citation: 575 F.2d 668
• Parties: 3 Fed. R. Evid. Serv. 950 UNITED STATES of America, Appellee, v. Gerald George WEIR, Appellant. UNITED STATES of America, Appellee, v. Daniel Wesley DAVIS, Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 668

575 F.2d 668

3 Fed. R. Evid. Serv. 950

UNITED STATES of America, Appellee, v. Gerald George WEIR, Appellant.

UNITED STATES of America, Appellee, v. Daniel Wesley DAVIS, Appellant.

Nos. 77-1708, 77-1709.

United States Court of Appeals,

Eighth Circuit.

Submitted Feb. 15, 1978.

Decided May 17, 1978.

Thomas D. Hanson and Philip F. Miller, Des Moines, Iowa, for appellants.

John M. Fitzgibbons, Asst. U. S. Atty., Des Moines, Iowa, for appellee; Roxanne Barton Conlin, U. S. Atty., Des Moines, Iowa, on brief.

Before LAY, HEANEY and HENLEY, Circuit Judges.

HENLEY, Circuit Judge.

These are appeals from judgments entered in the United States District Court for the Southern District of Iowa ¹ sentencing appellants to twenty years imprisonment following a jury verdict finding appellants guilty of armed bank robbery in violation of 18 U.S.C. §§ 2113(d) and 2.

Appellants assert five grounds for reversal. First, appellants argue the district court erred in admitting "other crimes" evidence in violation of Fed.R.Evid. 403 and 404(b). Second, appellants argue the district court erred in admitting certain other items of evidence. Third, appellant Davis argues the district court erred in refusing to admit evidence concerning another suspect in the bank robbery and in refusing to order the disclosure of the name of an informer who implicated a person other than Davis as the second participant in the bank robbery. Fourth, appellant Davis argues the district court erred in joining appellants' cases for trial and in denying Davis' motion to sever. Last, appellants argue the district court erred in allowing the Assistant United States Attorney to state in his closing argument that appellants were dangerous, ruthless people and that a verdict of acquittal would turn the streets over to them.

We reverse and remand for a new trial.

The essential facts and procedural history may be summarized as follows. On February 28, 1977 two masked men robbed the East Euclid Branch of the Valley National Bank of Des Moines, Iowa. Appellants Gerald George Weir and Daniel Wesley Davis, along with Andrew Harold Jackson, were arrested and charged with the robbery. After a preliminary hearing appellants and Jackson were bound over to a grand jury which indicted Davis and Weir separately for bank robbery in violation of 18 U.S.C. §§ 2113(d) and 2 and Jackson for misprision of a felony in violation of 18 U.S.C. § 4. Jackson pleaded guilty to misprision of a felony shortly before the trial of Weir and Davis began and became a government witness against Weir and Davis.

At trial the government introduced evidence of an attempt by appellants to kill a suspected informant, one Gilman, which allegedly occurred approximately two weeks after the robbery, and of threats by Weir to kill Jackson and an FBI agent. This evidence was introduced through the testimony of Jackson. Jackson's testimony, as it relates to these two incidents, may be summarized as follows. On March 10, 1977 Weir and his wife met Jackson and they went to Greenwood Park in Des Moines. After walking into a wooded area of the park Weir produced a pistol and threatened to kill Jackson because he believed Jackson had been talking with the FBI about the bank robbery. Weir also talked about killing FBI Agent Hersley who had signed the affidavit appended to the federal search warrant which had been executed at Weir's residence on March 5, 1977. In an attempt to convince Weir that Jackson had not been the informer, Jackson responded that Gilman, a friend of Jackson's, also knew about the bank robbery.

On March 12, 1977 Weir indicated to Jackson that he wanted to talk to Gilman because he suspected that Gilman had been talking with the FBI. On March 14, 1977 Jackson was instructed to drive Weir and Davis south of Des Moines to an abandoned farmyard near Milo, Iowa. During the drive Weir stated that he and Davis were going to kill Gilman. Jackson was told to leave Weir and Davis at the farm and to pick up Gilman in Des Moines and return to the farm with him where Weir and Davis would be waiting to kill Gilman. Jackson did as he was told, but as Gilman got out of the car at the farmyard Jackson shot him in the arm with the hope that he would be able to get away. Gilman managed to escape and shortly thereafter Jackson, Weir and Davis left the farmyard and returned to Des Moines.

Jackson's testimony concerning the Greenwood Park and Milo farm episodes was admitted over the objection of counsel for appellants that it was irrelevant and highly prejudicial.

In their briefs appellants assert that Jackson's testimony, especially as it dealt with threats of assassination of Gilman and Jackson, was evidence of "other crimes" committed by appellants and that the evidence should have been excluded under Fed.R.Evid. 404(b) which states:

Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.

The district court ruled that the evidence was relevant to state of mind or knowledge of guilt. After the verdict, in overruling a motion for a new trial, the trial judge stated that the testimony was relevant to establish motive, identity and intent. Appellants argue that Jackson's testimony was not relevant to any of the aforementioned exceptions to the rule of exclusion set out in Fed.R.Evid. 404(b), and that even if relevant under Rule 404(b) the testimony was not clear and convincing. Further, appellants argue that even if Jackson's testimony was relevant to one of the exceptions set out in Rule 404(b), it should have been excluded nonetheless pursuant to Fed.R.Evid. 403.

It may be that the "other crimes" evidence was marginally relevant to the issue of identity. However, we do not decide that issue since we hold that the probative value of the evidence, if any, was substantially outweighed by the danger of unfair prejudice and that it should have been excluded under Fed.R.Evid. 403, which states:

Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.

It is not without hesitation that we reverse a district court's ruling on a matter such as this. In determining whether evidence should be excluded under Fed.R.Evid. 403 we realize that great deference must be given to the district judge who saw and heard the evidence. United States v. Hall,565 F.2d 1052 (8th Cir. 1977); United States v. Matlock, 558 F.2d 1328, 1332 (8th Cir. 1977); United States v. Maestas, 554 F.2d 834, 836 (8th Cir. 1977). However, a careful review of the transcript reveals that the rule of deference is not decisive in the present case. The district judge at one point in the trial had determined that the "other crimes" evidence should be excluded because the danger of prejudice outweighed its probative value, rejecting arguments by the Assistant United States Attorney. The Assistant United States Attorney persisted in his argument, stating that guns were seen by Jackson at Davis' house and that Jackson stayed in Davis' house for a few days when he (Jackson) was hiding out after the Milo incident. The fact that Jackson stayed with Davis was characterized by the Assistant United States Attorney as imperative to the government's case because that was how Jackson ultimately was able to identify Davis. The district judge agreed that the government should be permitted to show the connection between Davis and Jackson, and after more discussion he, with obvious misgivings, changed his ruling on the admissibility of the "other crimes" evidence stating:

Well, I think we have wasted enough time. I'm going to open it up and let the government put in what they want, and the government can take their chance on reversal on this decision.

The government chose to take that chance, and we reverse. The trial judge was correct in his determination that the prejudicial impact of the "other crimes" evidence outweighed its probative value and also in his determination that the government was entitled to show that Jackson stayed in Davis' home for a few days. However, the fact that Jackson stayed in Davis' home for a few days and saw guns there which were later recovered from the river could have been offered into evidence, by appropriate questions, without going into the objectionable "other crimes" evidence.

In agreeing with the district court's original assessment that the prejudicial impact of the "other crimes" evidence substantially outweighed its probative value, we note the obvious tendency of the testimony of Jackson to suggest to the jury that a decision be rendered on an improper basis. The testimony suggested that appellants be convicted of bank robbery because they were bad men who had threatened to kill or attempted to kill law enforcement agents or informers. ² Indeed, the Assistant United States Attorney's statements in closing argument that appellants were dangerous, ruthless people and that a verdict of acquittal would turn the streets over to them appear to be calculated to enhance the effect of the "other crimes" evidence on the jury in suggesting an improper basis for a verdict of guilty, and these statements contribute to the balance of unfair prejudice resulting from the admission of the "other crimes" evidence. ³

Next, we must determine whether the error in allowing Jackson to testify concerning the "other crimes" requires reversal. The test which we must apply is...