183375P.pdf   01/23/2020  United States  v.  Kison Robertson
   U.S. Court of Appeals Case No:  18-3375
   U.S. District Court for the District of South Dakota - Rapid City   
   [PUBLISHED] [Gruender, Author, with Smith, Chief Judge, and Benton, 
   Circuit Judge] 
   Criminal case - Criminal law and sentencing. Admission of a 911 call did 
   not violate defendant's Confrontation Clause rights because the call was 
   not testimonial in nature; the statements in the call were excited 
   utterances made under the "stress of excitement" caused by defendant's act 
   of shooting the victim; the district court did not abuse its discretion in 
   admitting the evidence over defendant's Rule 403 objection as the 
   probative value of the call was not substantially outweighed by the risk 
   of unfair prejudice stemming from the caller's description of defendant as 
   "the same one that shot his gun over here last month;" evidence was not 
   needlessly cumulative; evidence that victim owed defendant $20 for 
   marijuana was properly admitted as part of the res gestae of the crime; no 
   error in denying defendant's proposed limiting instruction regarding 
   evidence that he was not permitted to possess a firearm at the time of the 
   shooting as he was not charged with unlawful possession of a firearm and 
   the instruction was irrelevant; no error in imposing special conditions 
   for defendant's supervised release requiring him to give blood, breath or 
   bodily fluids at the request of the probation officer and to inform a 
   person of a risk he poses to them if his probation officer determines 
   there is a risk; the court erred in imposing a condition regarding 
   consumption of alcohol or presence in bars because the court did not 
   explain its basis for the condition, defendant's offense was not 
   alcohol-related and the record does not show he was alcohol or drug 
   dependent; remanded for further proceedings.