Unpublished Disposition, 918 F.2d 181 (9th Cir. 1988)

MEMORANDUM^*** 

We are to decide whether the district court abused its discretion in denying appellant's motion for a mistrial in a criminal case when the court struck hearsay evidence forthcoming from a witness and ordered the jury to disregard it. Appellant contends that because the testimony was so damaging, the curative instruction given was inadequate and therefore the district court erred in not declaring a mistrial. We conclude that there was no abuse of discretion and will affirm.

James ("Jesse") Bryan Cozad was found guilty by a jury for being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g) (1), was duly sentenced and appeals from the sentence and conviction.

On August 8, 1988, a task force of four Madera County Sheriff's deputies sought Jesse Cozad at a location in Norfolk, California for parole violation. They found him in a mobile home owned by the family of David Nelson, one of the deputies.

Upon arriving at the scene, Nelson and Vernon Lidfors entered the house. Deputies Jack Wayman and Domingo Camit covered the rear. Upon entry of the deputies, Cozad shouted "David" and slammed the bedroom door. From behind the closed door, he shouted, "You're going to have to shoot me, I am not coming out."

At this time, Wayman had positioned himself in the rear yard about ten feet away from the bedroom window. He testified that Cozad smashed the window screen and attempted to crawl out, his right hand and arm leading and his head following. Upon noticing Wayman, he withdrew. Wayman testified that he then saw a gun, later identified as a .22 Arms Co. revolver, leave the right hand of Cozad and fly through the air striking a truck trailer bed three feet from the window. He said that he heard the sound of metal hitting metal.

Meanwhile, Camit had been underneath the bedroom window, his back to the mobile home. He testified that he had previously examined the open area where the gun later was retrieved by Deputy Wayman. He said that no revolver was there when he first stationed himself.

The gravamen of the appeal is based on the testimony of Deputy Nelson. On cross-examination the defense attorney inquired:

Q: Did you ever see the gun in any other place on that day?

A: That day, no, not that day. [RT: 111, 6-8]

On redirect examination:

Q: Showing you government's Exhibit Number 4, have you ever seen that gun before?

A: Yes, sir.

Q: When did you see it before?

A: That day we took Jesse--I seen this--the first time I seen it?

Q: Yes.

A: The first time I seen this gun was inside the trailer house that my sister had, and I asked her, "Whose gun is that?" And she told me it was Jesse's.

MR. GARLAND [defense counsel]: Objection, hearsay, Your Honor, motion to strike.

THE COURT: The objection will be sustained, the jury will be admonished not to--to disregard that testimony. [RT 112, 10-24]

The question before us is whether the cautionary instruction was sufficient. Generally, when evidence that subsequently is ruled inadmissible is heard by the jury, a cautionary instruction from the judge is sufficient to cure any prejudice to the defendant. This procedure is the preferred alternative to declaring mistrial when a witness makes inappropriate or prejudicial remarks. Mistrial is appropriate only when so much prejudice has occurred that an instruction is unlikely to cure it. United States v. Escalante, 637 F.2d 1197, 1202-03 (9th Cir.), cert. denied, 449 U.S. 856 (1980). We must decide whether this case falls within the general rule permitting curative instructions or within the exception.

We do not believe that admitting the hearsay statement that Jesse owned the gun was so prejudicial that an instruction was unlikely to cure it. Ownership of the firearm is not controlling in the prosecution of this case; it is the possession of a firearm by the felon that is material. Deputy Wayman testified that Cozad had thrown the revolver out of the window. Deputy Camit said that no revolver was on the ground prior to Cozad's action at the window. Sufficient admissible evidence established that Cozad had possession of the firearm. Nothing in the hearsay statement attributed to Nelson's sister concerned the possession of the firearm at the precise time of the incident.

Bonnie Harrison Cozad, Jesse's wife and sister of Deputy Nelson, testified for the defense that she was the owner of the revolver and that she had placed the revolver in the yard behind the mobile home before the day in question. This conflicted with testimony of Wayman and Camit. And there also was testimony that she had made statements to the Sheriff's representatives on August 6, 1988, in which she reported that Jesse had pointed a gun at her and her daughter on August 5, 1988; under oath she said that the statements she made then were false. On rebuttal, David Nelson reasserted the testimony that he had asked his sister whose gun it was and that she had told him it was Cozad's. The court instructed that Nelson's later testimony was admissible only in evaluating the credibility of Bonnie Harrison Cozad. Thus, the conflicting testimony was a jury question, which the jury resolved adverse to the appellant.

Considering the totality of the circumstances, we conclude that the general rule permitting a curative instruction applies here.

AFFIRMED.