Bill Houston Carter v. United States

549 F.2d 77

• Court: Court of Appeals for the Eighth Circuit
• Decided: March 7, 1977
• Docket: 76-1888
• Status: Published

Opinions

PER CURIAM.

Bill Houston Carter appeals from his conviction of violating 18 U.S.C. § 922(h)(1), for unlawfully receiving a firearm which had been transported in interstate commerce after he had been previously convicted of a crime punishable by imprisonment for a term exceeding one year. Carter contends on this appeal that the district court committed prejudicial error in permitting a witness, a druggist, to testify that immediately preceding Carter’s apprehension, Carter had presented the druggist with a forged prescription for narcotic drugs. Appellant argues that the admission of this testimony of another crime was of such prejudicial effect that a mistrial should have been granted on appellant’s motion. Given the factual context of this case, we reject this contention and affirm the conviction.

The witness, William Darnell, testified that Carter had entered Darnell’s drug store and asked Darnell to fill a prescription for Preluden, a narcotic. Over objections, the witness testified in direct examination that he recognized that the narcotics prescription was forged. The druggist filled the prescription, but advised Carter of a discrepancy in the prescription and asked him to wait until the police arrived so the matter could be straightened out. Carter turned and walked rapidly out of the front door and started to run away. The druggist obtained a revolver and gave chase. During the chase, appellant abandoned the sack containing the Preluden and dropped a pistol over the side of a nearby retaining wall. Carter was apprehended by Darnell and another pharmacist who had joined in the chase. The prosecution established by other competent evidence that a pistol found behind the retaining wall had been in Carter’s possession.

During cross-examination of Darnell, this witness admitted that he had not seen Carter’drop his gun over the retaining wall. In response to defense counsel’s questions, Darnell characterized Carter’s presentation of the forged prescription as a felony:

Q Why didn’t you look over the wall immediately when it fell?

A Well, sir, Mr. Carter had just committed a felony. There were a lot of things on my mind, and what he dropped over the wall wasn’t one of them.

Thereafter, Carter’s counsel moved for a mistrial. The court denied the mistrial but admonished the jury: “Whether he [Carter] did or didn’t commit a crime [relating to narcotics] is no concern of yours, as I have explained to you. And it has to be totally ignored by. you, * * * and the guilt or innocence of the defendant is in regard to the pistol and the pistol only.”

An exception exists to the general rule excluding evidence of other crimes which “permits the introduction of evidence of other criminal activity to complete the story of the crime on trial by proving its immediate context or the ‘res gestae.’ ” United States v. Howard, 504 F.2d 1281, 1284 (8th Cir. 1974). See also United States v. Cochran, 475 F.2d 1080, 1082-83 (8th Cir.), cert. denied, 414 U.S. 833, 94 S.Ct. 173, 38 L.Ed.2d 68 (1973); United States v. Stubblefield, 408 F.2d 309, 310 (6th Cir. 1969); McCormick, Evidence § 190 at 448 (2d ed. 1972); 1 Wigmore, Evidence § 218 at 719-722 (3d ed. 1940).¹

In this case, the narration of the events immediately preceding the chase and the discovery of the weapon behind the retaining wall, together with other corroborating evidence, served to establish that Carter had been in possession of the weapon. The evidence was admitted for a proper purpose.² While this evidence did not go to prove motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident, those purposes as listed in 404(b) are not exclusive and the res gestae rule is well recognized. See 2 J. Weinstein & M. Berger, Weinstein’s Evidence 1404[08] at 405 — 45 (1975).

When the testimony is properly admitted, the court should give a limiting instruction. United States v. Calvert, 523 F.2d 895, 907 (8th Cir. 1975), cert. denied, 424 U.S. 911, 96 S.Ct. 1106,47 L.Ed.2d 314 (1976). Here, the record shows that the district court gave not one, but three, instructions to the jury informing them of the limited purpose for which the testimony had been admitted. Accordingly, the record discloses no error in reception of the questioned evidence.

Affirmed.

1 . Although Wigmore criticized the res gestae rule, his complaint was that the use of the term obscured analysis, not that the rule itself was unsound. Perhaps because of this scholarly criticism, Fed.R.Evid. 404(b) does not use the term “res gestae.’’

2 . Rule 404(b) of the Federal Rules of Evidence reads as follows:

(b) Other crimes, wrongs, or acts. 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.