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State v. Bush4/14/2004
gun" and instructed the jurors that the prosecutor was telling them only what he intended to prove during the trial. The prosecutor then continued his remarks as follows:
So Mr. Nelson has had some drugs taken by Mr. Tigg. Mr. Bush comes out and befriends Mr. Nelson. Now, this will be Mr. Nelson who will be testifying on these points. Mr. Nelson is given a 9mm. pistol by Mr. Bush. That's the relevance of what happened four days after the fact. Bush gives a pistol to Nelson.
During Delmiccio Tigg's testimony, the state began questioning him about taking Nelson's drugs four days after the robbery. Tigg testified that Nelson was sitting in a car, that he sprayed Nelson with Mace, that he grabbed Nelson's bag of cocaine, that he ran into the defendant's apartment, and that he took about an ounce of cocaine out of the bag. The state then asked him, "Whose idea was it for you to do that?" and Tigg replied, "Rafael Bush." A short time later, the defense attorney objected on the basis that the state was introducing evidence of the defendant's other bad acts. The state explained to the trial court that it was "going to show where the pistol went." The trial court told the state to continue, and Tigg testified that Nelson confronted him with the defendant's gun, demanded that Tigg return the bag of drugs, and refused to return the 9mm pistol to the defendant. The defense again objected and stated:
Judge, at this time I respectfully move for a mistrial based upon Gen. Price's questions to this witness about specific instances of bad conduct, which I didn't have any notice except what we talked about earlier today and that we should have a jury out hearing.
Because now what he has done is that he has put - - and we talked about this during opening arguments. He has argued through this witness and presented testimony through this witness that after this event occurred, my client orchestrated some type of theft of drugs from Mr. Nelson through this individual. And then my client organized or orchestrated some type of assault by Mr. Nelson back against Mr. Tigg.
Judge, those are specific instances of conduct that they are trying to use to impeach my client's character. And he hasn't testified, and his character is not at issue. And they've gone about it all the wrong way. And those bells have been rung, and that's what I've been fussing about all day.
The state informed the trial court that it was "showing how the gun passed and why it passed from one person to the other." The state said that the trial court could have a 404(b) hearing and decide "what the proper remedy would be if there was a mistake made." The trial court overruled the defense's motion.
On the morning of the second day of trial, the defense again motioned that the trial court exclude from evidence any further reference to the defendant's other bad acts. The state told the trial court that the jury had to hear about Tigg's stealing Nelson's drugs in order for the state to explain how Nelson got the defendant's gun after the robbery. The state said that Nelson also would be testifying as to the events but that "I'm going to limit Mr. Nelson's conversation about these individuals to those specific situations . . . where the gun in the context of stealing some drugs was passed from Antonio Bush to Cordell Nelson. And that's going to be it." The trial court ruled that the state "can tie in the gun" but that the state could not ask witnesses about any bad acts. Later that day, Cordell Nelson testified that a few days after the robbery, Tigg stole his bag of drugs and the defendant gave him a 9mm pistol.
The defendant claims that the trial court erred by not holding
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