United States v. Elliott Simmons

414 F.2d 800, 1969 U.S. App. LEXIS 11689

• Court: Court of Appeals for the Ninth Circuit
• Decided: June 30, 1969
• Docket: 23849_1
• Status: Published

Opinion

PER CURIAM:

Defendant and another were tried and convicted under a charge of taking personal property from another by force, violence, and intimidation on a federal reservation. 18 U.S.C. § 2111. The evidence against defendant was not strong.

In its case-in-chief, the government sought to prove a belligerent statement, allegedly made by defendant shortly before the offense, as bearing upon defendant’s state of mind. The proof was excluded. Nonetheless, on cross-examination of the co-defendant, government counsel quoted the excluded statement and asked if the defendant had made it. Defendant’s objection was sustained, and the jury was instructed to disregard the question.

The excluded statement thus brought to the attention of the jury was highly prejudicial to the defendant. In view of the weakness of the government’s case we cannot say that government counsel’s error was rendered harmless by the court’s admonition and that it did not affect the verdict.

The judgment is therefore reversed, and the cause is remanded for a new trial.