IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 94-50823
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ROY EDWARD BROWN,
Defendant-Appellant.
Appeal from the United States District Court
for the Western District of Texas
December 21, 1995
Before HIGGINBOTHAM, DUHÉ, and EMILIO M. GARZA, Circuit Judges.
HIGGINBOTHAM, Circuit Judge:
Roy Edward Brown appeals his conviction of possession with
intent to distribute 50 or more grams of crack cocaine on Fed. R.
Evid. 404(b) grounds. We reverse.
I
A grand jury issued a superseding indictment charging Mr.
Brown. Count One charged Mr. Brown of possession of crack with
intent to distribute, and Count Two alleged distribution of crack.
The possession charge arose out of events occurring on April 15,
1994, and the distribution charge referred to a controlled buy
occurring on April 7 of the same year. Upon motion, the district
court dismissed Count Two of the indictment because the informant
who made the controlled buy could not identify the crack cocaine
presented at trial as the crack he bought from Mr. Brown.
The primary witnesses against Mr. Brown in the possession
charge were Kelly Hensley and Officer Dickson. On direct and
redirect examination, Ms. Hensley testified that around 7:00 on
April 15 she was watching TV in her trailer when a man came running
past the trailer looking scared. It was light outside. The man
ran to a distance of 75 feet, dropped a brown paper bag, then
continued on his way. Ms. Hensley approached the bag and observed
a white substance later found to be crack. She returned to her
trailer. Fifteen minutes later, the man returned and began walking
around the trailer park in an apparent attempt to find the bag.
The man’s search took him to within a few feet of the window of Ms.
Hensley’s trailer. Ms. Hensley notified the police. She described
the man as having short hair, no beard, and no mustache, and as
wearing a shirt with vertical blue and white stripes, blue jeans,
white socks, and black shoes. After a short time, the man left.
Ms. Hensley called a neighbor, and the two moved the bag to a bush
outside the neighbor’s apartment. The neighbor then called the
police again.
Police officers eventually arrived around 7:45 to 8:00. They
took statements from Ms. Hensley, recovered the bag, and left.
About a week later, Ms. Hensley went to the police station. She
viewed six or seven photographs and identified the Mr. Brown.
2
On cross-examination, Ms. Hensley testified that while she
might have told the police that the man was bald, she meant that he
had very little hair. She recalled that she had described the man
to the police as midsized, by which she meant 5' 5" to 5' 10". She
reiterated her testimony that the man was clean-shaven. She also
testified that although there were no street lights or flood lights
in the area other than those in a high school some 400-500 feet
away, it was light outside during the entire incident, including
all of the time that the police arrived to investigate the
incident. She further testified that in the picture she
identified, Mr. Brown was not bald and wore a mustache and hair on
his cheeks. Throughout the cross-examination she remained quite
certain of the identification.
On direct examination, Officer Dickson testified that he
responded to a dispatcher’s radio call by driving to the mobile
home park where Ms. Hensley lived. The dispatcher had advised him
that a citizen had called in regard to a balding black man wearing
a white button-down shirt with blue stripes. As Officer Dickson
approached the park, he observed a man fitting that description at
some telephones adjacent to the park. He stopped the man and asked
for identification. The man orally identified himself as Ray Brown
and provided a date of birth. Mr. Brown explained that he had come
through the trailer park from a nearby high school to use the phone
to call for a ride home. After a brief time, a car arrived for Mr.
Brown, and Officer Dickson sent Mr. Brown on his way. It was light
throughout this encounter. After a brief return to the police
3
station, Officer Dickson returned to the trailer park, interviewed
Ms. Hensley, and confiscated the paper bag.
On cross-examination, Officer Dickson testified that Mr. Brown
was above 6' 1" tall. He also testified that it was dark at the
time he arrived to speak with Ms. Hensley, and he had to use a
flashlight to see.
Other state witnesses testified regarding the events of the
evening of April 15. Ms. Hensley’s neighbor generally corroborated
Ms. Hensley’s version of the events, including the fact that it was
daylight throughout the relevant events, including the encounter
with the police. Officer Chapman generally corroborated the
testimony of Officer Dickson regarding the interview of Ms.
Hensley, the seizure of the paper bag, and the subsequent
photographic lineup. On cross-examination, Officer Chapman
testified that the paper bag had been tested for fingerprints, and
that the prints found on the bag had not matched those of Mr.
Brown.
Still other prosecution witnesses testified as to the events
of April 7, which gave rise to the distribution charge. In
particular, Stacy Johnson, the person who made the controlled buy
on behalf of the police, testified as to the events of that
evening.
Mr. Brown called one witness, Ms. Lorene Whitson. On direct
examination, Ms. Whitson testified that she had received a phone
call from Mr. Brown on the evening of April 15 asking her to pick
him up at a phone booth outside a trailer park. She testified that
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at the time Mr. Brown was wearing a blue T-shirt. She further
testified that for the past several years, Mr. Brown had suffered
from a skin condition requiring him to wear “slithers of hair, not
a beard or anything” as well as a mustache, and that his face was
in this condition on April 15.
After direct examination, the prosecution approached the bench
and announced its intention to ask Mr. Whitson whether she knew
that Mr. Brown had previously been convicted of possession with
intent to distribute crack cocaine. The district court overruled
Mr. Brown’s Rule 404 objection. The entirety of the cross-
examination of Ms. Whitson was as follows:
Q: Ms. Whitson, during the last 11 years that you have
known Mr. Brown, were you aware that he was one and the
same person that was convicted in Bell County of the
offense of Possession With --
[Defense counsel]: Your Honor, is there any need for me
to restate the objection?
The Court: No, sir.
[Defense counsel]: Thank you.
Q: Are you aware that he is one and the same person that
was -- during that period of time, in Bell County, Texas,
was convicted of the felony offense of Possession With
Intent to Distribute Cocaine and went to the Texas
Department of Corrections for, I believe, 11 years?
A: Do I know that he had served time in prison?
Q: Yes, ma’am.
A: Yes.
Q: For that offense, Possession With Intent to Distribute
Cocaine?
A: That’s what was told to me, yes.
[Prosecuting attorney]: That’s all I have, Your Honor.
5
The Court: I’ll need to instruct the jury.
Ladies and Gentlemen of the Jury, you can consider
that evidence as evidence of character or as a propensity
to commit a crime, but only on the issue of motive or
opportunity or identity in this case.
At the charging conference, the prosecution agreed that Ms.
Whitson’s cross-examination testimony was relevant to no issue but
the identity of the man Ms. Hensley saw. In accordance with this
agreement, the court instructed the jury as follows:
During the course of this trial, you have heard
evidence of acts of the defendant, which may be similar
to those charged in the indictment, but which were
committed on other occasions. You must not consider any
of this evidence in deciding if the defendant committed
the acts charged in the indictment. However, you may
consider this evidence for other, very limited purposes.
You may only consider evidence of the similar acts
allegedly committed on other occasions only to determine
whether you wish to accept evidence as to the identity of
the Defendant as the person who committed the acts
alleged in Count One of the indictment.
This is the limited purpose for which any evidence
of other similar acts may be considered.
At closing, after referencing Stacy Johnson’s testimony that
he bought crack from Mr. Brown,1 the prosecution stated the
following:
When you look at that and you look at that evidence, who
was there? This man was there. How do we know? Because
we’ve got several people that are telling us that that’s
who he was, that that’s where he was and that’s what he
does. And you look at the thing and you say, “Well, what
else do we know? We know that a person, the same
persons, Roy Edward Brown, that the identity is a
question in here, was previously convicted of the same
offense, Possession With Intent to Distribute “Crack”
Cocaine. Does that help you with the identification? If
it does, that’s what it’s there for.
1
The defense objected to this argument as beyond the scope
of the judge’s charge, an objection we interpret as a reference to
the fact that the judge had dismissed Count Two of the indictment.
6
Defense counsel argued that Mr. Hensley had misidentified Mr. Brown
as the man with the paper bag.
During deliberations, the jury sent the court the following
note: “We would like to know where Stacy Johnson was on 15 April[.]
Did Stacy Johnson ever have short hair similar to Mr. Roy Brown[?]”
The district court responded, “I cannot answer the question you
have asked. You must try to make a decision based on the evidence
you have.” The jury found Mr. Brown guilty.
The jury found Mr. Brown guilty of the offense charged in
Count One.
II
The parties agree that Rule 404(b) governs the admissibility
of the Ms. Whitson’s testimony regarding Mr. Brown’s prior
conviction. Rule 404(b) renders inadmissable evidence of the
defendant’s prior convictions designed to show that the defendant
committed the crime charged in the indictment, but allows the
admission of such evidence to prove motive, intent, identity, or
other elements of the case. In essence, Rule 404(b) prohibits the
jury from inferring that the defendant committed the charged crime
from the fact that he committed a past crime. The prosecution
conceded below and agrees here that Ms. Whitson’s testimony was
admissible, if at all, as probative only on the issue of Mr.
Brown’s identity.2
2
We note initially that the testimony actually introduced
might well have been inadmissable under Rule 403. Even if evidence
of Mr. Brown’s prior conviction were admissible, we are unable to
discern the relevance of the fact that Ms. Whitson knew of the
conviction.
7
We review the district court’s admission of evidence under
Rule 404(b) under a “careful application” of the abuse of
discretion standard. United States v. Anderson, 933 F.2d 1261,
1268 (5th Cir. 1991). We will not reverse a conviction on the
grounds of improperly admitted evidence if the admission was
harmless beyond a reasonable doubt. Chapman v. California, 386
U.S. 18, 24 (1967).
We find difficult to grasp the state’s argument that evidence
of Mr. Brown’s prior conviction for the same crime charged in Count
One was probative on the issue of Mr. Brown’s identity on April 15
as the man with the paper bag. While we at times affirm the
admission of prior bad acts or convictions in order to show that a
defendant acted according to a certain modus operandi, see United
States v. Sanchez, 988 F.2d 1384, 1393-94 (5th Cir.), cert. denied,
114 S. Ct. 217 (1993), the admissibility of such testimony normally
depends upon a factual similarity between the prior act and the act
alleged. In this case, the jury heard no evidence of the facts
surrounding Mr. Brown’s prior conviction.
In other circumstances, we have upheld the admission of
evidence of prior bad acts or convictions in order to show a
witness’s opportunity to identify the defendant, see United States
v. King, 703 F.2d 119, 125 (5th Cir.), cert. denied, 464 U.S. 837
(1983), or perhaps to show that the defendant used a certain name,
see United States v. Aguirre, 716 F.2d 293, 299-300 (5th Cir.
1983). None of these circumstances apply here. The only way in
which Ms. Whitson’s cross-examination testimony could help identify
8
Mr. Brown was through the inference that because Mr. Brown
committed the crime of possession with intent to distribute before,
he had done so again. This is the inference that Rule 404(b)
prohibits. Ms. Whitson’s cross-examination testimony was relevant
to no issue other than Mr. Brown’s character. See United States v.
Beechum, 582 F.2d 898, 911 (5th Cir. 1978) (en banc) (stating that
the first step in a Rule 404(b) analysis is to decide whether the
challenged evidence was relevant to an issue other than character),
cert. denied, 440 U.S. 920 (1979).
The admission of this evidence was not harmless beyond a
reasonable doubt. The evidence in this case was not so
overwhelming that the jury likely disregarded the prior conviction.
Mr. Brown’s theory of the case was that, while he had walked
through the trailer park on that evening to use the phone, Ms.
Hensley had incorrectly identified him as the owner of the paper
bag. Defense counsel was able to point out certain inconsistencies
in Ms. Hensley’s description of Mr. Brown, but could not shake her
certainty that Mr. Brown was the culprit. Nevertheless, Mr.
Brown’s fingerprints were not among those found on the paper bag,
and Ms. Hensley was the only eyewitness.
Most important for our harmless error analysis is the fact
that the comments of the district court and the prosecution
exacerbated the possibility that the jury drew the prohibited
inference from the evidence of the prior conviction. Immediately
after Ms. Whitson’s testimony, the district court told the jury
that it could “consider that evidence as evidence of character or
9
as a propensity to commit a crime;” in the next breath, the court
added, “but only on the issue of motive or opportunity or identity
in this case.” This instruction was ambiguous. The first half
represented a misstatement of the law that the second half sought
to correct.
The trial court’s final instructions did represent a correct
statement of the law. But the jury could follow these instructions
only if it realized that the evidence of Mr. Brown’s prior
conviction had no permissible probative value on the issue of the
identity of the man with the paper bag on the night of April 15.
In essence, the jury had to guess that the evidence was
inadmissible, and it had to do so in the face of the trial judge’s
instruction that the evidence was relevant to Mr. Brown’s identity.
Under such circumstances, the jury could only have surmised that it
was allowed to consider the fact that Mr. Brown had previously been
found guilty of the offense charged in Count One as evidence that
he was a drug dealer, and that his status as a drug dealer made it
more likely that he was the man Ms. Hensley saw on the night of
April 15.
In fact, the prosecution argued exactly this theory to the
jury. After referring to Stacy Johnson’s testimony that Mr. Brown
sold him crack, evidence relevant only to a count of the indictment
the trial judge had already dismissed, the prosecution argued that
Mr. Brown was present at the trailer park, carrying the paper bag
with cocaine, because several witnesses testified that “that’s what
he does.” The prosecution continued by arguing that the fact that
10
Mr. Brown “was previously convicted of the same offense, Possession
With Intent to Distribute ‘Crack’ Cocaine” could help the jury with
its disposition of the identification issue, an argument that
invited the jury to draw the prohibited inference.
Finally, we note that the jury’s question to the judge in the
middle of its deliberations suggested that it harbored doubts as to
whether Mr. Brown was the man Ms. Hensley saw on April 15. The
jury questioned the judge as to Stacy Johnson’s whereabouts on the
night of April 15. It also asked if he had short hair at the time,
in essence asking if Johnson fit the description Ms. Hensley gave
to the police at the time. This note suggests that the jury was
concerned about the question of Mr. Brown’s identity and thought
that perhaps Ms. Hensley might have seen Stacy Johnson. Under such
circumstances, we cannot say that beyond a reasonable doubt the
jury did not fall back on the prohibited inference that the judge
and the prosecution had invited it to make.
We REVERSE Mr. Brown’s conviction and REMAND for a new trial.
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