The Fourth District Court of Appeals recently ruled that evidence of gun ownership may be admissible in a criminal trial against a defendant even when it was not a gun used in the perpetration of the crime. InJohnson v. State, a criminal defendant was accused of first degree murder and armed robbery of a convenience store. The charges stemmed from a robbery of a gas station where the clerk was shot three times with a nine millimeter gun. Shell casings from a nine millimeter were found at the scene of the crime. When the Defendant was arrested at his mother's house in Alabama, police found a 45 caliber gun in the home. The trial court allowed the prosecution to admit photographs of the 45 caliber gun in evidence, even though there was no dispute that the 45 caliber was not the murder weapon and was not used in the crime at all.
Generally, it is impermissible for a prosecutor to introduce evidence of ownership of a gun when it's not the gun used in the crime. Certainly, this is sometimes in dispute -- the prosecutor may say it is the gun used in the crime, the defense may argue it is not. This is where firearms examiners and forensic evidence comes into play. But what if it's a totally different kind of gun, such as was the case in Agatheas v. State, 77 So.3d 1232 (Fla. 2011). In Agatheas, the prosecution introduced evidence that a 45 caliber revolver was recovered from the defendant when he was arrested, five years after a homicide occurred. The murder weapon was a 38 caliber revolver. The 45 caliber had absolutely no connection to the murder. The Court in the Agatheas case found this to be irrelevant and unduly confusing and misleading evidence. The conviction was therefore reversed in Agatheas. This is because it is not permissible to say that because a person owns a gun, he is more likely to have committed a crime involving a different gun. The prosecution can't "suggest generally that the defendant had possessed the murder weapon because he was a gun owner."
However, in the Johnson case, the circumstances were different, and according to the Court of Appeals, this difference calls for a different result. In Johnson, the Defendant's ex-girlfriend testified that he confessed to her that he had participated in the robbery and shot the clerk with the nine millimeter. He told her that he then sold the nine millimeter and purchased the 45 caliber in its place. The Court of Appeals held that the admission of the photographs of the 45 and the fact that it was found in the same home as the Defendant corroborated the ex-girlfriend's testimony and was properly introduced to explain what happened to the murder weapon and why it was not recovered.
But, wouldn't the ex-girlfriend's testimony that Johnson sold the gun have been enough to establish why it wasn't found? Why then also allow her to go one step further and say he purchased the 45 caliber? If the presence of the 45 caliber is admissible to merely corroborate the testimony of the ex-girlfriend, why wouldn't it have been admissible in Agatheas, where his ex-girlfriend testified that he had a gun a backpack in her closet, which is where it was found by police? Certainly, that bolstered her testimony. But it wasn't admissible because it wasn't related to the crime.
Gun control is a hot button issue in the United States. And whether you're for it or against it, it is undeniable that we have a 2nd Amendment right to possess a firearm. But despite this right and the fact that many law-abiding citizens choose to own guns, there is still a stigma attached to it. When a person is on trial for committing a gun crime and the jury hears that he owns a gun, even though there's absolutely no way it was the gun used in the crime, the jury still seems to hold it against him and think he is more likely to have committed the crime merely by virtue of the fact that he is a gun-owner. This stigma means that courts must be very careful in allowing evidence of gun ownership in a case where it is undisputed that it was not the gun used in the crime.