UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 06-4809
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
MICHAEL LOUIS BOYD,
Defendant - Appellant.
Appeal from the United States District Court for the District of
South Carolina, at Rock Hill. Joseph F. Anderson, Jr., Chief
District Judge. (0:05-cr-00945-JFA)
Submitted: July 9, 2007 Decided: August 17, 2007
Before WILKINSON, NIEMEYER, and SHEDD, Circuit Judges.
Affirmed by unpublished per curiam opinion.
John H. Hare, Assistant Federal Public Defender, Columbia, South
Carolina, for Appellant. Robert Claude Jendron, Jr., Assistant
United States Attorney, Columbia, South Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Michael Louis Boyd appeals his conviction for possession
of a firearm and ammunition by a convicted felon, in violation of
18 U.S.C. §§ 922(g) & 924(a)(2) (2000). His attorney has filed a
brief in accordance with Anders v. California, 386 U.S. 738 (1967).
Although informed of his right to do so, Boyd has not filed a pro
se informal brief. The Government has declined to file a brief.
Boyd’s counsel raises two potential evidentiary issues: whether the
district court erred in admitting an audiotape and transcript of a
911 call and erred in refusing to permit defense counsel to cross
examine a Government witness about his marijuana use the day before
his testimony at trial. Finding no error, we affirm.
Counsel first raises the issue of whether an audiotape
and transcript of a 911 call should have been admitted as an
excited utterance and an exception to the hearsay rule. We review
the district court’s evidentiary rulings for an abuse of
discretion. See United States v. Cooper, 482 F.3d 658, 662-63 (4th
Cir. 2007). Melvin James’s statements during the 911 call were
admissible under the excited utterance exception to the hearsay
rule, which is “[a] statement relating to a startling event or
condition made while the declarant was under the stress of
excitement caused by the event or condition.” Fed. R. Evid.
803(2). James’s statements were made under the stress of
excitement caused by the shots at the club door. The court noted
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that James sounded excited on the tape of the call and that James
testified he made the call immediately after the shots were fired.
Therefore, we conclude that the district court did not abuse its
discretion in admitting James’s 911 statements under the excited
utterance exception to the hearsay rule.
Although ultimately concluding there was no error, Boyd’s
counsel argues that the court erred in refusing to permit defense
counsel to cross examine Bruce Johnson about his drug use the day
before his trial testimony. Evidence of other acts is not
admissible to prove bad character or criminal propensity, but such
evidence is admissible to prove motive, opportunity, intent,
preparation, plan, knowledge, identity, or absence of mistake or
accident. See Fed. R. Evid. 404(b); United States v. Queen, 132
F.3d 991, 994-95 (4th Cir. 1997). Rule 404(b) is an inclusive
rule, allowing evidence of other crimes or acts except those which
tend to prove only criminal disposition. Queen, 132 F.3d at
994-95; United States v. Rawle, 845 F.2d 1244, 1247 (4th Cir.
1988). Evidence of prior acts is admissible under Rules 404(b) and
Fed. R. Evid. 403, if the evidence is: (1) relevant to an issue
other than the general character of the defendant, (2) necessary,
(3) reliable, and (4) the probative value of the evidence is not
substantially outweighed by its prejudicial value. Queen, 132 F.3d
at 997.
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Here, the district court gave Boyd the opportunity to
cross examine Johnson regarding specific episodes of drug use
during the day of the shootings and the day of his testimony at
trial. When considering its ruling, the court also gave Boyd the
opportunity to show that Johnson’s marijuana use the day before his
testimony had lingering effects that impaired him the next day, but
counsel was unable to demonstrate this. Thus, Johnson’s marijuana
use the day before his testimony was not relevant to the issues
about which he was testifying and the court did not abuse its
discretion in refusing to permit examination on the issue. See
United States v. Sampol, 636 F.2d 621, 667 (D.C. Cir. 1980); United
States v. Leonard, 494 F.2d 955, 971-72 (D.C. Cir. 1974) (a witness’s
prior use of drugs is relevant only as to the ability of the witness
to perceive the underlying events and testify lucidly at trial).
In accordance with Anders, we have reviewed the entire
record in this case and have found no meritorious issues for
appeal. We therefore affirm Boyd’s conviction and sentence. This
court requires that counsel inform his client, in writing, of his
right to petition the Supreme Court of the United States for
further review. If the client requests that a petition be filed,
but counsel believes that such a petition would be frivolous, then
counsel may move in this court for leave to withdraw from
representation. Counsel’s motion must state that a copy thereof
was served on the client.
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We dispense with oral argument because the facts and
legal contentions are adequately presented in the materials before
the court and argument would not aid the decisional process.
AFFIRMED
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