United States v. Eddie Turquitt, A/K/A Isom Edward Turquitt, A/K/A Edward Isom Turquitt

557 F.2d 464, 1 Fed. R. Serv. 1046, 1977 U.S. App. LEXIS 12028
Court of Appeals for the Fifth Circuit·Decided August 12, 1977·No. 76-1959·Published·Cited by 90 cases

Opinions

SIMPSON, Circuit Judge:

Eddie Turquitt was convicted by a jury on all four counts of an indictment charging him with unlawful possession of stolen mail matter, knowing the same to have been stolen, in violation of Title 18, U.S.C., Section 1708. He was adjudged guilty and given a general sentence of three years imprisonment and fined $1000, to stand committed until payment of the fine. This appeal rests upon two contentions. Appellant initially argues that the court improperly received evidence, over objection, of a past criminal act for which he had been neither charged nor convicted. He also claims that “plain error”, Rule 52(b) F.R. Crim.P., resulted when the trial judge failed to give the jury a cautionary instruction as to remarks made by governmental counsel in his closing argument. We reverse on the first ground.

The government established, partly by testimony and partly by stipulation, that during a thirty day period four checks were stolen from the United States Mails in Birmingham, Alabama. There was testimony that the checks were cashed at Birmingham banks, and that the endorsements on them were forged.1 The government produced an expert handwriting/fingerprint analyst, James DeYoung, who testified that he could positively state that the endorsements on two2 of the four checks were written by the appellant. Although noting “some suspicious agreement” between the endorsements on the other checks and the appellant’s handwriting samples, DeYoung stated that some features were present that he could not account for, and that he was unable positively to identify as appellant’s the endorsement on those checks. DeYoung testified further that he found appellant’s fingerprints on three of the four checks in question, and on some deposit slips and additional checks received in evidence.

Appellant Turquitt testified in his own defense. He denied any guilty knowledge regarding the checks but stated that he possibly had touched some of the checks and deposit slips. He denied signing any of the checks or opening a checking account in the name of L. S. Boggan.3 Turquitt explained that while he was at the home of Raul Vella, a former employee of Turquitt Masonry Company, Inc., Mr. Vella told him to look at some papers on a table. Appellant [467] testified that he looked through these papers, a checkbook and some checks, and then put them back on the table. Raul Vella was later arrested on December 2, 1975, when he tried to cash the check payable to Schumate covered by Count IV of the indictment.4 It was Turquitt’s further direct testimony that a few days before Raul Vella was arrested, Mr. Vella handed him a check and asked him to cash it, which request he refused. He stated that he touched the check when Mr. Vella handed it to him, but denied signing the name of John L. Schumate on the back of the check.

On cross-examination, appellant was asked by government counsel where he lived from September 1975 through December 1975. Turquitt gave his address as the Arboretum Apartments in Hoover (Alabama), Apartment 1818C. Counsel then asked if he had ever lived at 917C Valley Avenue, and Turquitt denied ever living at that address. The next question was whether he had ever gone under the name of Eddie Von Blitzen. Turquitt denied this also. At this point, defense counsel objected to the line of inquiry, and when the prosecutor said he was “laying a predicate for the—” the trial judge overruled the objection. Appellant was then asked if he had ever signed a lease under the name of Eddie Von Blitzen. Turquitt denied ever doing so, and his attorney again objected. The objection was overruled.5 The lease and a rental application form, both bearing the signature of Edward Von Blitzen, were admitted into evidence over defense counsel’s continuing objection. Further cross-examination revealed that Gene Carter, appellant’s longtime friend and employee, lived in the apartment named in the lease signed “Edward Von Blitzen”.

On rebuttal, the government called as a witness, Shirley Ray, an employee of Tillman Realty. She stated that she had rented an apartment to Gene Carter and Edward Von Blitzen. When asked if Edward Von Blitzen was in the courtroom, she pointed to the appellant. She also testified that he had signed the lease. Defense counsel consistently objected to these questions.6 No limiting instructions were given [468] by the trial court with respect to the “lease evidence”.

Appellant’s first ground of appeal is that the trial court erroneously admitted evidence of an unrelated criminal act, the “lease evidence”, indicating either forgery or signing of a lease under an assumed name, for which he had never been charged or convicted, solely for impeachment purposes. He claims that the “lease evidence” severely prejudiced his defense, and that he was deprived of a fair trial by its admission before the jury. The point is well taken and requires reversal of the judgment of conviction.

“[EJvidence which shows or tends to show commission of crimes not charged is inadmissible in a trial for a particular crime”, (citation omitted) United States v. Broadway, 477 F.2d 991, 994 (5th Cir. 1973). See also Weiss v. United States, 122 F.2d 675 (5th Cir. 1941), cert. denied, 314 U.S. 687, 62 S.Ct. 300, 86 L.Ed. 550 (1942). This rule is necessary to prevent conviction based on a jury belief that the accused is a person of bad character. The jury’s determination of guilt or innocence should be based on evidence relevant to the crime charged. This rule is of course subject to several exceptions. Evidence of the commission of other crimes, closely related both in time and nature to the crime charged, may be admissible if offered to prove an essential element of the charged offense, such as motive, intent, identity, guilty knowledge, or a common scheme, plan or design. See United States v. Crockett, 514 F.2d 64 (5th Cir. 1975); United States v. Broadway, supra; 2 C. Wright, Federal Practice & Procedure § 410 (1969).

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United States v. Eddie Turquitt, A/K/A Isom Edward Turquitt, A/K/A Edward Isom Turquitt, 557 F.2d 464, 1 Fed. R. Serv. 1046, 1977 U.S. App. LEXIS 12028 (5th Cir. 1977).

557 F.2d 464 (United States v. Eddie Turquitt, A/K/A Isom Edward Turquitt, A/K/A Edward Isom Turquitt) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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