United States v. Welch , 238 F. App'x 944 ( 2007 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 06-4767
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
FREEMAN DARRELL WELCH,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of North Carolina, at Bryson City. Lacy H. Thornburg,
District Judge. (2:05-cr-00008)
Submitted: May 30, 2007 Decided: July 11, 2007
Before WILKINSON and DUNCAN, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
Andrew B. Banzhoff, DEVEREUX & BANZHOFF, PLLC, Asheville, North
Carolina, for Appellant. Gretchen C. F. Shappert, United States
Attorney, Charlotte, North Carolina, Don D. Gast, Assistant United
States Attorney, Asheville, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Freeman Darrell Welch appeals his jury conviction and
life sentence for first degree murder in Indian country, in
violation of 18 U.S.C. §§ 1111 and 1153. Following an evening of
heavy drinking, Welch severely and repeatedly stabbed his wife, who
died at the scene. Welch asserts the district court erred when it
admitted evidence of an unrelated assault that occurred ten years
prior involving Welch attacking Merlin Brown with a knife. This
earlier assault also occurred while Welch was intoxicated, and
Welch claimed directly afterwards that he did not remember
assaulting Brown. He argues this evidence was not relevant or
probative of his state of mind at the time he assaulted his wife
and was unduly prejudicial.
We review the district court’s admission of evidence for
an abuse of discretion. See United States v. Hodge, 354 F.3d 305,
312 (4th Cir. 2004). “[A]n abuse [of discretion occurs only when
it can be said that the trial court acted arbitrarily or
irrationally in admitting evidence.” United States v. Williams,
445 F.3d 724, 732 (4th Cir), cert. denied 127 S. Ct. 314 (2006).
Although inadmissible solely to prove the character of a defendant,
evidence of other crimes, wrongs, or acts “may . . . be admissible
for other purposes, such as proof of motive, opportunity, intent,
preparation, plan, knowledge, identity, or absence of mistake or
accident.” Fed. R. Evid. 404(b). Rule 404(b) is an inclusive
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rule, allowing only evidence of other crimes or acts that which
tends to prove only criminal disposition. Such evidence is
admissible if it is necessary, reliable, and relevant to an issue
other than the defendant’s character. United States v. Queen, 132
F.3d 991, 994-95, 997 (4th Cir. 1997). If the prior act evidence
meets these criteria and the probative value is not substantially
outweighed by its prejudicial effect, it may be admitted. Id. at
997. Limiting jury instructions explaining the purpose for
admitting such evidence and advance notice of the intent to
introduce prior act evidence provide additional protection to
defendants. Id.
In considering the relevance of the questioned evidence,
“the more similar the prior act is (in terms of physical similarity
or mental state) to the act being proved, the more relevant it
becomes.” Queen, 132 F.3d at 997. Welch’s prior assault and
purported defense that he did not remember assaulting the victim
were very similar to the present crime. Welch argues here that due
to intoxication, he could not have premeditated or deliberated the
assault on his wife. The evidence of Welch’s prior assault on
Merlin Brown while intoxicated and his purported lack of memory of
the assault was admissible under Rule 404(b) and was not unfairly
prejudicial. The similarity of the conduct alleged tends to
demonstrate the absence of mistake or accident and reveals a
pattern in which Welch claims that due to his intoxication he does
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not remember his bad acts. Moreover, the occurrence of the prior
assault and Welch’s assertion he “blacked-out” only for the very
brief time of the assault in both instances helped demonstrate that
the defense of intoxication here was not worthy of belief. These
are permissible purposes for admission of evidence under Rule
404(b). See, e.g., United States v. Teague, 737 F.2d 378, 381 (4th
Cir. 1984). Nor was the evidence unduly prejudicial——it was not
lurid or inflammatory, nor did it tend to cause the jury to decide
the case against Welch on an irrational basis. See United
States v. Aramony, 88 F.3d 1369, 1378 (4th Cir. 1996). It simply
underlined the fact that Welch had become violent while intoxicated
before and he similarly claimed that he was so impaired that he did
not remember the assault, but remembered clearly the events leading
up to the assault and the events directly following.
Moreover, the district court minimized the risk of unfair
prejudice by explaining the proper uses of other crimes evidence
when the evidence was introduced and in the jury charge prior to
deliberation. Queen, 132 F.3d at 997; see United States v. Alerre,
430 F.3d 681, 692 (4th Cir. 2005) (“Ordinarily, of course, we
presume that a properly instructed jury has acted in a manner
consistent with the instructions.”), cert. denied, 126 S. Ct. 1925
(2006)). Given these facts, we find the district court did not
abuse its discretion in allowing the evidence pursuant to Rule
404(b).
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Welch asserts the district court abused its discretion
when it permitted the Government’s expert witness to testify in
rebuttal, because he was not placed on notice of the witness’s
testimony in violation of Fed. R. Crim. P. Rule 16. Welch argues
that the Government intentionally gave the expert’s report to Welch
only minutes before the witness testified, and Welch’s counsel did
not have time to adequately prepare cross-examination.
Decisions regarding compliance with Rule 16 are also
reviewed for abuse of discretion. See United States v. Young, 248
F.3d 260, 269 (4th Cir. 2001). Again, the court will find such an
abuse of discretion only if the district court’s evidentiary ruling
was arbitrary or irrational. Williams, 445 F.3d at 732. While the
report was given to Welch just minutes before Dr. White testified,
Welch twice received notice of the Government’s intent to use an
expert witness, who remained on stand-by for rebuttal purposes.
Welch could have requested the expert report, but did not so.
Welch’s decision not to request the expert report before the trial
date was a strategic choice. Morever, counsel for Welch voiced a
“general objection” to the testimony of Dr. White but then merely
requested that he be permitted to ask Dr. White a few questions to
determine whether he should be admitted as an expert. Counsel
asked Dr. White questions about his background, and the expert was
admitted based upon these responses. Any purported discovery
violation did not prevent counsel from thoroughly cross-examining
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Dr. White, and Welch did not suffer from substantial prejudice from
the timing of the disclosure of Dr. White’s report. The district
court’s decision to admit Dr. White’s testimony was not an abuse of
discretion.
For these reasons, we affirm Welch’s conviction and
sentence. 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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