ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF DELAWARE Crim. No. 75-32
Before: MARIS, ADAMS and HUNTER, Circuit Judges.
Larry Phelps was tried for armed robbery of a bank. In response to questions about a possible firearms violation, the government, in order to disabuse the jury of any notion that Phelps might legally possess a gun, introduced evidence that Phelps had previously been convicted of sodomy, and thus by possessing a pistol at the time of the arrest was in violation of federal statutes.*fn1 It is the admissibility of the evidence regarding the crime of sodomy that must be assessed on this appeal.
On February 19, 1975, a bank in Delaware was robbed by a lone gunman, who then fled in a car driven by another man. The gunman, Nathan Cook, was picked up by police forty-five minutes later, while operating a car owned by Phelps. Later that night Phelps himself was arrested in Maryland. At the time of his arrest, he was in possession of a large amount of cash. In the automobile in which Phelps was a passenger, the police found a pistol that matched the description of the gun that had been used in the bank robbery.
Cook confessed that he had participated in the bank robbery and when his confession was upheld, he pleaded guilty. Thereafter, Phelps' trial took place and Cook testified that a third man, Robert Acker, had been his accomplice in the robbery. Cook also said that he owned two identical pistols: one he had used in the robbery, and the other had been taken from him by Phelps.
The only evidence produced against Phelps, aside from his possession of the pistol and cash,*fn2 was testimony to the effect that (1) Phelps and Cook had been together the night before the robbery and the two had left together the next morning; and (2) Phelps was arrested in the company of a woman to whom Cook had relayed a message after being detained by police following the bank robbery.*fn3 Acker's wife was the sole defense witness at Phelps' trial. She testified to having heard Acker, while under the influence of alcohol, speak about participation in a bank robbery.
During the cros-examination of the federal agent who had arrested Phelps and discovered the pistol, the defense attorney asked the agent whether it was a federal crime to transport an unregistered firearm across state lines. The agent answered that it was not, and further testified that the seized pistol appeared to be a legal weapon. The defense attorney next asked whether it was against Maryland law to carry a concealed weapon. The agent answered affirmatively, adding that there were criminal penalties for such conduct.
On redirect, the prosecutor began to ask, "Assuming that the defendant here had been at the time [he possessed the gun] a convicted felon...," but was interrupted by an objection. At side bar the prosecutor argued that the defense had opened the door to questions regarding the lawfulness of Phelps' possession of the gun, and that evidence of prior crimes by Phelps had become admissible to rebut the impression that Phelps had broken no laws by having the pistol.*fn4 The defense counsel asserted that his general inquiry concerning the firearms laws was theoretical and not made in reference to the defendant.
The trial court then allowed the government to place before the jury state court records showing Phelps to have been convicted of sodomy prior to his possession of the gun. Those records also indicated that Phelps had been in prison for an undisclosed offense at the time of the sentencing on the sodomy conviction. After admitting these documents, the trial judge stated to the jury:
As I understand the record, there was an effort by defense counsel to bring out that the possession by this Defendant of a firearm under United States law was not illegal. The government then offered to prove that if a person who carried a gun had a record of a felony, it was illegal. And I permitted the introduction of the record of this Defendant, a record of a felony, conviction of a felony on the part of this Defendant, solely for the purpose of putting before you the fact that a convicted felon cannot legally under U.S. law be in the possession of a firearm. Do you understand that it has nothing to do with the guilt of this Defendant in this case as charged whatever. It is simply to refute the impression given that there was nothing illegal under U.S. law for this Defendant to have had this firearm in his possession. It was for the sole purpose of showing that in fact if he were a convicted felon he couldn't legally under United States law carry this firearm. That's the sole purpose for which [this] evidence is admitted.
After the jury returned a verdict of guilty, Phelps filed a timely appeal. We reverse and remand for a new trial on the ground that the trial court abused its discretion, in the particular circumstances of this case, in ...