Rule 403. Excluding Relevant Evidence for Prejudice, Confusion, Waste of Time, or Other Reasons
The court may exclude relevant evidence if its probative value is substantially outweighed by a danger of one or more of the following: unfair prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or needlessly presenting cumulative evidence.
United States v. Pugh, 175 Fed. Appx. 390, 393 (2d Cir. 2006)Appellant's final claim with respect to his convictions is that the district court abused its discretion in permitting the government to elicit expert testimony from an ATF Special Agent about hollow-point bullets. The Special Agent testified that hollow point bullets are “designed to flatten on impact,” that they are “designed for defensive purposes,” and that they therefore “provide more protection” than an ordinary bullet. Appellant asserts that this testimony was both irrelevant and highly prejudicial. We disagree. We have already stated that where, as here, a gun was loaded with hollow point bullets, that fact “militate[s] against an inference of innocent use, such as target practice or hunting.” Lewter, 402 F.3d at 322 (discussing evidence supporting a jury's conclusion that the gun had been possessed in furtherance of a drug crime). Moreover, we see no danger that Appellant was unfairly prejudiced by the dry and technical language of the testimony elicited by the government.United States v. Lewter, 402 F.3d 319, 322 (2d Cir. 2005)Possession of a firearm to defend a drug stash clearly furthers the crime of possession with intent to distribute the contents of that stash. See United States v. Garner, 338 F.3d 78, 81 (1st Cir.2003) (“When guns and drugs are found together and a defendant has been convicted of possession with intent to distribute, the gun, whether kept for protection from robbery of drug-sale proceeds, or to enforce payment for drugs, may reasonably be considered to be possessed ‘in furtherance of’ an ongoing drug-trafficking crime.”); United States v. Suarez, 313 F.3d 1287, 1293 (11th Cir.2002) (where firearms were hidden throughout a stash house, “the jury could reasonably have inferred that the guns were to be used to protect the conspirators' investment in their shipment”).The evidence was sufficient to support the jury's verdict that Lewter possessed the gun to defend his drug stash. The firearm had an obliterated serial number and was loaded with hollow-point bullets-facts that militate against an inference of innocent use, such as target practice or hunting. Moreover, the gun was stored within feet of Lewter's drug stash and within Lewter's reach. See Finley, 245 F.3d at 202-03 (affirming conviction under § 924(c)(1) where unloaded shotgun was stored under pile of clothes in the room from which drugs were sold); see also Wahl, 290 F.3d at 376-77 (affirming conviction under § 924(c)(1) where loaded gun was within defendant's reach and in close proximity to defendant's drug stash).United States v. Fort, 25 F.3d 1041 (4th Cir. 1994)The prosecution had to prove beyond a reasonable doubt that the defendants possessed firearms and used them in connection with their drug trafficking and not for some innocent purpose, such as, target practice, bird hunting, clay pigeons, etc. Hollow-point ammunition is not used for target shooting or hunting. It is designed, manufactured and used to produce the greatest damage to the human victim. See United States v. Bayko, 774 F.2d 516, 521 (1st Cir.1985) (“the possession of a firearm partially loaded with bullets[hollow-nosed] designed to maim or kill by one with the defendant's background is by itself ‘clear and convincing’ evidence of dangerousness.”).
*4 Firearms are a tool of the illegal drug trade. These weapons are possessed not for sport, but are used to protect the drug dealers, their illegal drugs, and their ill-gained currency from other criminals and law enforcement officers. The record is filled with testimony about defendants' desire to acquire firearms and instructing their salesmen to trade drugs for firearms when possible. When a person loads a revolver with hollow-point ammunition, he may expect this fact to be used against him, if he possesses or uses the weapon for some illegal purpose. If the stolen shotgun had been loaded with buckshot rather than birdshot, this would have been admissible because buckshot is more effective against humans than birdshot.United States v. Newton, 31 F.3d 611, 613 (8th Cir. 1994)The evidence in the present case showed that a loaded AR–15 semiautomatic rifle was found behind the door leading to appellant's bedroom, and a loaded .38–special revolver and a loaded .22 caliber revolver were found inside a dresser drawer in the same bedroom. These weapons were found in the same room in which the methamphetamine was discovered. Two of these weapons were loaded with hollow point ammunition that is designed for self defense and antipersonal use, rather than target practice. This was sufficient evidence for the jury to conclude that the appellant used the firearms during and in relation to a drug trafficking offense.United States v. Garza, 566 F.3d 1194, 1201 (10th Cir. 2009)Mr. Garza's firearm was readily accessible, very near the drugs, and equipped in a manner suited for protection (that is, with loaded and chambered hollow-point bullets and a red-dot scope nearby).
State v. Aguilar, 1 CA-CR 06-0035, 2009 WL 690598 (Ariz. Ct. App. 2009)
This asserted error is based on an apparent misreading of the record. The trial court did not order that evidence of hollow point bullets was inadmissible. It merely sustained Aguilar's objection to this evidence at one point because the subject exceeded the scope of cross-examination. Later the prosecutor asked another witness on direct examination about hollow point bullets. The evidence was relevant because the State had to prove premeditation, and Aguilar's defense was the absence of premeditation. Victim J.B. was killed with a hollow point bullet. Hollow point bullets like those used by Aguilar are designed to be more lethal than other bullets. Thus the evidence had some relevance to Aguilar's state of mind.
United States v. Leake, 396 Fed. Appx. 898, 901 (3d Cir. 2010) cert. denied, 131 S. Ct. 1541 (U.S. 2011)
Troy Leake appeals from a judgment of conviction and sentence entered by the United States District Court for the District of New Jersey following his conviction *899 for unlawful possession of a firearm, in violation of 18 U.S.C. § 922(g)(1)
On June 2, 2009, Leake proceeded to trial. During the government's case-in-chief, Sergeant Ruane testified that one of the guns recovered from Leake on the night of his arrest was loaded with two hollow-point bullets. Leake's counsel objected to the line of questioning, arguing that “[i]t's not a relevant element of the case.” (JA at 173.) The District Court overruled the objection, stating “[r]elevance is as to the weapon. I'll allow it.” (Id.) Golpe also testified about the hollow-point bullets and explained the difference between hollow-point and bald-point bullets as follows: “Hollow point is designed to expand, or more commonly referred to in the media as the cop-killer bullets.” (JA at 219–20.) Leake's counsel objected and also moved for a mistrial based on Officer Golpe's testimony about “cop-killer bullets.” The District Court overruled the objection and declined to grant a mistrial. The Court offered to give the jury a curative instruction, but Leake's counsel declined the offer. On June 3, 2009, the jury returned a verdict of guilty.
Leake argues that the District Court erred in failing to grant a mistrial because “[t]he testimony about ‘cop killer’ bullets was so prejudicial a mistrial was required.” (Appellant's Op. Br. at 38.) We disagree. Officer Golpe's single statement that hollow-point bullets are “more commonly referred to in the media as the cop-killer bullets,” obviously does not amount to pronounced and persistent remarks, Lore, 430 F.3d at 207 (“a single statement by a witness ... hardly can be deemed pronounced and persistent”), and, as already noted, the record contains overwhelming evidence of Leake's guilt, including the eyewitness testimony of two police officers that Leake was carrying two firearms, which were both recovered during the arrest. In addition, the District Court offered to issue a curative instruction, which Leake declined. See United States v. Smith, 487 F.3d 618, 622 (8th Cir.2007) (holding that the district court did not abuse its discretion in denying the motion for a mistrial where the defendant had declined the district court's offer to give a curative instruction to the jury). Thus, in light of the strength of the other evidence presented at trial against Leake and the *905 District Court's offer to give a curative instruction, we cannot say that the District Court abused its discretion in declining to grant a mistrial based on Golpe's single statement that hollow-point bullets are more commonly known in the media as “cop-killer” bullets.
State v. L'Minggio, 71 Conn. App. 656, 658, 803 A.2d 408, 410 (Conn. App. Ct. 2002)
The defendant, Jason L'Minggio, appeals from the judgment of conviction, rendered after a jury trial, of manslaughter in the first degree with a firearm in violation of General Statutes § 53a–55a1 and carrying a pistol or revolver without a permit in violation of General Statutes § 29–35(a)
Finally, the defendant claims that the prosecutor, during her closing argument, committed prosecutorial misconduct that deprived him of a fair trial. We disagree.
13 The defendant's claim focuses on the prosecutor's references to the type of bullets that the defendant used in the shooting. During her closing argument, the prosecutor referred to the bullets as both “killer bullets”9 and “[f]lesh ripping, killer bullets.”10 The defendant *675 argues **420 that this description of the ammunition “was not supported by the testimony, has no scientific basis and was improperly intended to appeal to the jury's sympathies.” The defendant also argues the prosecutor's “language was excessive, inflammatory and unsupported.”11
It was undisputed at trial that the perpetrator of the shooting used a unique type of ammunition, namely, nine millimeter Federal Hydra Shok jacketed hollow point bullets. At trial, Harold Wayne Carver, a forensic pathologist and the chief medical examiner for the state of Connecticut, testified about the hollow point bullet that he recovered from Mayes' leg. Carver testified that this type of bullet is “a bullet in which the nose of the bullet is ... scooped out. It sort of has like a little dish in it. They are designed to change their shape to get bigger when they hit something. And the whole purpose of the bullets is to put energy into tissue and thereby destroy tissue.... [I]f the bullet is bigger, it touches more tissue and is more efficient at depositing its energy in the tissue. Therefore, it's supposed to do a better job.” Carver further explained that this variety of bullet is designed to do more damage by hurting more body tissue. **422 Edward Jachimowicz, an expert firearms and tool mark examiner who works in the forensic science laboratory for the state, also testified about the bullets used in the shooting. Jachimowicz testified that the bullets were “copper jacketed, hollow point. Inside the bullet, or, inside the cavity of the hollow point, there's a post. The design of the bullet is that when fluid, whether it's water or body fluids or whatever, but when a fluid gets into the nose of that bullet, the water pressure or the hydraulic pressure causes the nose of that bullet to mushroom. And the post then sticks out and basically steers the bullet on a truer, straighter path.”John Brunetti, a detective with the West Haven police department who investigated the shooting, also testified about the bullets used in the shooting. Brunetti testified *679 that he observed a spent bullet in the ground and that it had “mushroomed.” He therefore suspected that it was a hollow point type bullet.1718 Having reviewed the testimony concerning the bullets used in the attack, we are unable to conclude that the prosecutor's remarks were unsupported by the evidence adduced at trial. The state's experts testified that the bullets were designed to expand when they entered the body so as to maximize their ability to destroy body tissue. The evidence further demonstrated that the bullets used in the shooting fulfilled that purpose. In light of that evidence, the prosecutor's remark that the bullets were “flesh ripping” was not inaccurate and, therefore, not inappropriate. Furthermore, the prosecutor's reference to the bullets as “killer bullets” was likewise not inaccurate. The evidence reflects that the use of hollow point bullets in the shooting caused Mayes' death. The prosecutor may comment on the evidence and on the reasonable inferences that the jurors might draw from such evidence. State v. Payne, 260 Conn. 446, 454, 797 A.2d 1088 (2002).13When viewed in isolation, the prosecutor's remarks might appear inflammatory or intended solely to arouse *680 the passions of the jury. When viewed in context of the evidence adduced during trial, however, the remarks constituted fair and zealous comment on the evidence. Having concluded that the prosecutor's remarks did not rise to the level of prosecutorial misconduct, we have no need to consider whether they deprived the defendant of his right to a fair trial.
United States v. Bayko, 774 F.2d 516, 521 (1st Cir. 1985)
We turn first to the requirement that a defendant may not be released on bail if he or she poses a danger to the community or is likely to flee the jurisdiction.
We cannot agree with the district court's finding that Bayko was not a danger to the community. Upon appeal, the defendant has the burden of showing “by clear and convincing evidence” that he or she will not be a danger to the community, Fed.R.App.P. 9(c); 18 U.S.C.A. § 3143(b), even where it is the government which has taken the appeal. “The motion shall be determined upon such papers, affidavits, and portions of the record as the parties shall present....” Perhaps the most positive information about the defendant, the presentence report, was not included in the record upon appeal.7 Although it is by no means clear that having this report before us would have led us to a different conclusion, without the report we certainly cannot see “clear and convincing evidence” that the defendant will not pose a danger to the community, either by violent acts or criminal activity. The presentence report cannot explain away the fact that defendant armed himself with a .38 revolver, a deadly weapon that he made even more deadly by partially loading it with hollow-nosed bullets. The possession of a firearm partially loaded with bullets designed to maim or kill by one with defendant's background is by itself “clear and convincing” evidence of dangerousness.
Kolp v. State, 932 So. 2d 1283, 1283-84 (Fla. 4th DCA 2006)In a trial on three counts of attempted second-degree murder with a firearm, the State produced evidence that defendant had fired his weapon three times at two men. Both men were called to testify about the event. In the testimony of one, the following ensued:Q. Yeah, tell the jury what you guys recovered.A. Recovered three empty casings, which were shot, and then I think it *1284 was two more that were not shot, and they were hollow-points.Q. What does that mean?A. That means that the centers of them were carved out. Like, usually, hollow-points are for killing, you know? If you don't-[e.s.]At that point defense counsel objected to this unqualified witness being allowed to offer opinion evidence as to the use of hollow-point bullets, which the trial court overruled. Later in cross-examination, defense counsel asked the same witness the following:Q. You obviously have knowledge about firearms when you were describing the hollow-point bullets, right?A. I mean, who doesn't know about them. You watch movies, right?Even later in the trial, the State questioned defendant on cross-examination about hollow-point bullets as follows:Q. Okay. And you loaded this gun with hollow-point bullets.A. Yeah, hollow-points. They're hollow-points for a reason.Q. So, for what reason?A. The hollow-points are for a reason, and if I'm in my house and someone breaks in and I shoot somebody or I'm going to have to shoot somebody, I don't want a bullet to go through that person, through the wall, and kill my son in the other room.Q. Okay.A. That's what a hollow-point is for.Defendant was convicted of the three counts of attempted second-degree murder with a firearm as charged. On appeal the only issue is the admissibility of the testimony of the witness that hollow-point bullets are for killing.
Initially, we conclude that the testimony was not admissible under section 90.701, Florida Statutes (2005). In Fino v. Nodine, 646 So.2d 746 (Fla. 4th DCA 1994), we held that the kind of opinion testimony by lay witnesses admissible under section 90.701 is usually limited to things related to perception: e.g., “distance, time, size, weight, form and identity.” 646 So.2d at 748-49. The testimony about the purpose of hollow-point bullets is none of these things. The testimony is properly characterized as speculative. Allowing this testimony from the witness that the purpose of hollow-point bullets is only for killing was therefore error, but the issue is whether it prejudiced the outcome.