United States v. Merwin Smith

<p>United States Court of Appeals For the Eighth Circuit ___________________________ No. 19-2447 ___________________________ United States of America Plaintiff - Appellee v. Merwin Smith Defendant - Appellant ____________ Appeal from United States District Court for the Eastern District of Missouri - St. Louis ____________ Submitted: September 22, 2020 Filed: October 26, 2020 ____________ Before SMITH, Chief Judge, BENTON, and KOBES, Circuit Judges. ____________ KOBES, Circuit Judge. Merwin Smith appeals his conviction for unlawful possession of a firearm as a convicted felon in violation of 18 U.S.C. § 922(g)(1). Smith argues that the district court1 should have excluded his 2005 felon-in-possession conviction and that 1 The Honorable John A. Ross, United States District Judge for the Eastern District of Missouri. prosecutorial misconduct during rebuttal closing prevented him from receiving a fair trial. We see no error, and we affirm. I. In the early morning hours of July 17, 2016, a City of Normandy police officer, patrolling the neighborhood for an unrelated larceny suspect, stopped Smith for a traffic violation. As Smith got out of the car, the officer saw him lean into the car, toss something out of the passenger window, and heard it hit the ground with a “loud metallic clunk noise.” 3/6/19, Trial Tr. Vol I 171:15. The officer found a gun between 10 and 15 feet away from Smith’s car and arrested him for possessing a firearm as a felon. Smith denied throwing the gun out of the car and denied any possession of the gun. The Government sought to introduce Smith’s 2005 conviction for being a felon in possession of a firearm to show knowledge, absence of mistake, and lack of accident under Rule 404(b) of the Federal Rules of Evidence. Smith objected, arguing that knowledge and mistake were not material issues because he denied possession of the gun, not knowing possession of the gun. The district court admitted the conviction and instructed the jury that the evidence should only be used to determine “knowledge, absence of mistake, or lack of accident” and could not be used for propensity purposes. During closing arguments, Smith’s counsel suggested that the firearm could have been discarded by the escaping larceny suspect, and the officer, embarrassed about not catching that thief, made up a story about Smith: “When you tell a lie, this is the easy part to remember . . . . He remembers the toss, ladies and gentlemen. Well, of course he does. That’s this big dumb story. What he doesn’t remember is those details, because when you tell a lie, that’s what trips you up, those details.” 3/7/19, Trial Tr. Vol II 75:13–19. The Government responded by stating in rebuttal, “[n]ow what should offend anyone is that she just called this officer a liar, and said -2- that he set this person up. He planted this gun . . . .” 3/7/19, Trial Tr. Vol II 78:2– 4. Defense counsel objected, claiming that the prosecution disparaged defense counsel and mischaracterized her argument. The district court overruled the objection. The ...</p><br>
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