Evidentiary Objections Rejected; Homicide Conviction Affirmed

U.S. v. Smalls, -- F.3d --, 2014 WL 1663081 (4/28/14)(NM) - The district court did not err in its evidentiary rulings in the trial of one of three inmates accused of killing another inmate. Evidence that Mr. Smalls told his asthmatic ex-wife, whom he temporarily prevented from accessing her inhaler five months before the murder in this case, that she should just die so he would not have to kill her was distinctive and similar enough to Smalls's verbalized intent to smother the victim here and claim the death was caused by asthma as to be "signature quality" evidence admissible under Rule 404(b). Evidence of the fact of conviction and the nature of Smalls' two prior felony convictions involving his ex-wife, i.e., aggravated battery against a household member with a deadly weapon and csp, was properly admitted under Rule 609(a)(1). A co-conspirator's out-of-court statements were properly admitted under Rule 802(d)(2)(E). A cellmate's recorded statement to a fellow inmate, made before the declarant was himself charged, about the three defendants' roles in the murder was admissible under Rule 801(d)(1)(B) and Tome. The gov't did not elicit false testimony about a plan to suffocate the victim, who was strangled instead. The jury instructions were fine. A mere presence instruction was unnecessary because the gist of it was covered elsewhere in the instructions. The gov't did not improperly vouch for the truthfulness of its witnesses by introducing plea agreements that contained truthfulness provisions. The evidence was sufficient to support the convictions. And no need for cumulative error analysis since no error was found.