*2 McKAY, Before BARRETT and Circuit Judges, CARRIGAN,* and Judge. District BARRETT, Judge. Circuit Doreen appeals Smith her conviction fol- lowing to a jury of involuntary man- slaughter arising from a vehicular accident the Navajo on Indian Reservation near Gal- lup, Mexico, New on March 1983. The accident p.m.; occurred about 8:30 it was a head-on collision between a Pontiac Trans- Am, Smith, by driven and a Honda motorcycle. The motorcyclist, James Rad- loff, was killed. Smith and Francis Benal- ly, occupant car, another of the taken were hospital Shiprock, to a New Mexico. A car, Tanner, occupant third Herman apparently away from walked the accident up Farmington, scene and turned New Mexico, morning. the next Smith, Benally, and Tanner all live in Farmington. they trip On March took a Farmington Shiprock from west Gallup then south to in Tanner’s Pontiac trip began Trans-Am. The with Tanner driving Benally Tanner and vehicle. drinking during trip, were beer but Smith, night, tired from a late soon fell asleep They back of the vehicle. Gallup p.m., arrived in around 5:30 where po- stopped Gallup vehicle having lice. Tanner citations for expired plates for driving license with- license, although Benally he and out both * Carrigan, ting by designation. Jim Honorable R. United States Colorado, Judge District for the District of sit- driving Benally then sion is that Smith was while intoxi- sobriety tests. field
passed lane driving and the threesome cated and was because over the took toward negligence. north Smith’s version is that: she Gallup and headed back left stopped Benally all, having Along the road intoxicated at Shiprock. had not been stop.” Since both morning nothing “restroom the car two beers drinking, had been Benally then; and Tanner since she had swerved all to drink *3 driving. For some took over wrong motorcy- Smith into the lane to avoid the car around and reason, turned the she had cle, shortly had in her lane which south, Gallup, driving back toward and, impact; the collision occurred before occurred. the accident when motorcycle quickly re- because the its lane. turned to own at the accident scene The road hills or straight; there are no obstructions challenges appeal, On Smith several in is one lane either vicinity. There during evidentiary rulings court’s III shoulders. R. Yol paved direction facts, they be- second trial. Additional impact of the car and The at 474. relevant, in come will be related consider- three motorcycle approximately challenges. ing these line in feet from the shoulder and one-half (east) motorcy- The lane. the northbound I. mark in the north- cle’s rear tire left a skid Smith contends that the court denied her impact; the car’s tires lane before bound process right by denying to a fair trial due impact, but all left no skid marks before present opportunity her the her de- impact lead- tires left skid marks after four hap- fense—her version of how the accident the car ing lane where into southbound pened it her attor- refused allow —when came to rest. ney during a the sec- witness Navajo police officer at the The first ond trial a inconsistent state- Ahkeah. He smelled a scene was Sam ment he made at the first trial. The wit- strong liquor odor of from the breath of Hayes, ness was John T. a New Mexico Benally. Ill at 389. Smith and R.Vol. both police state officer and a traffic accident Suspecting they may have intoxi- trial, specialist. first reconstruction At the cated, brought police depart- Ahkeah during cross-examination Hayes concluded hospi- to the “Intoxilyzer” ment’s machine physical evidence at the Benally tak- tal where Smith and had been scene, accident the ear must have been en, samples and obtained breath from both (wrong) mini- lane for a northbound Benally of them. tested at blood 0.17% impact: mum of 131 feet before (BAC) p.m., alcohol content at 9:46 Gov’t. Now, Q. I want to [Defense counsel] Exh. and Smith tested at BAC at 0.16% car, given to the ... your turn attention p.m., 10:38 Gov’t.Exh. 26. the road marks you what understand is indicted on June 1983. thing, Smith was marks and all that sort of and skid charged oper- The indictment that she had you previously given the facts as have “grossly negligent a motor ated vehicle them, point of im- interpreted as to the manner,” “knowledge with of circumstanc- or lack of marks pact and the marks reasonably that made it es foreseeable here. might imperil
her acts the lives of others.” feet, again away far and then How trial, I at 1. Smith’s first at which R.Vol. time, it been that this car testified, hung jury; ended in a conse- she time of at the the was where was [sic] The sec- quently a mistrial was declared. yet in its lane impact, and testify, did not at which Smith ond that, given physical evi- all guilty and conviction. ended verdict scene, that was at the dence things, all the car and these the size of government’s and Smith’s The version going car was assuming that the dif- happened of how the accident version an hour? dramatically. government’s ver- miles fer Q. Is he to as- Based on the MR. TORREZ evaluation of all the [Prosecutor]: evidence, physical motorcycle she could have been in speed a certain sume her lane 131 feet or 1.8 seconds hypothetical? in her impact, impact where the occurred? I think she said 55. THE COURT: A. I believe so. I don’t INDRITZ MS. [Defense counsel]: (First transcript, R.Supp.Vol. VIII at question even involves the the think this 555.) motorcycle. It involves the speed of the being the car distance between Smith was thus able establish at the being and the car in its point of trial, through Hayes’s witness testi- mony, lane. that the car must have been in the relatively lane for a short distance fig- [Hayes]: Okay. A. There are two (131 feet) (1.8 seconds) and time ures, explain they and I will what are. gave evidence no in- steering, just very hard Had there been dication, *4 way other, one or the about where beyond point just point below the —or the car may prior have been to 1.8 seconds left, at a mark would have been which impact. Thus, stresses, as Smith it up for the cars to come in the fashion possible right was that she in the was lane were, they that in order for the vehicle to to 1.8 seconds before In oth- recover and come back somewhat words, although er Smith did not steer left straight position, require more would oncoming enough into the lane hard to 131 feet. (scuff) yaw marks, leave she still could BY MS. INDRITZ: fairly left quickly steered without Q. And how does 131 feet translate into Thus, claims, leaving such marks. she her time at the rate of 50 miles an hour? happened version of the the accident A. It 1.8 seconds. would be physical was not inconsistent with evi- So, words, Q. if Doreen was other dence. correct that she was in her lane and all trial, Hayes again At the second was you previously physical evidence is as testify, called to this time as a defense was, including point it testified again witness. When defense counsel on, impact and the marks and so she his the minimum asked for conclusion as to in her lane here arid then and time that the car distance must have position be here in the 1.8 impact, lane to seconds to the collision? Hayes could not answer because he had not Yes, A. ma’am. speed for the car that he (First transcript, Supp. R. Vol. VIII at upon. (Hayes could base his calculations 551-53.) speed m.p.h. in the had assumed a of 50 Hayes’s upon testimony fact conclusion was first trial based Smith’s effect, on the actual- based evidence as it no testimo- but there had been ly existed was minutes in the second ny yet speed underscored a few as to the car’s trial.) exchange occurred following later on re-cross-examination: Hayes: between defense counsel BY MS. INDRITZ: Q. you far the Tran- Can tell how back Q. testimony Your if is that the steer- to cross the center line sAm would had ing strength degree were below that point impact at the order to at the marks, required right— yaw to leave the impact? time of Yes, A. ma’am. having type some Again, A. not without —so, therefore, Q. your testimony is speed part deal of a with you on the facts as understand TransAm. be, your them to based on evaluation the evidence? [*] sfc H? [*] [*] [*] speed you physi- Q. you if knew a would A. Based on the evaluation of the But give us that information? be able cal evidence. Yes, taking A. THE am ma’am. COURT: I all that into consideration I when refused to allow Q. give you also be able to And would testify him to to that. us a time? BY INDRITZ: MS. Yes, A. ma’am. Q. Now, you I asked the same question 487-88.) (R.Vol. at III case, at the last trial in this didn’t I? trial, the car speed Later in the Yes, ma’am, A. and I believe that our alleged evasive maneuver were and Smith’s understanding again was that would 610-11, established, R.Vol. Ill at have to be with those marks. subsequently recalled. The MR. TORREZ: would also like to now, in the record was physical evidence out the jury at time that practical purposes, all identical for asked, he had heard —he upon Hayes’s which con- physical evidence had heard additional evidence. the first trial had been clusion at based. Yes, THE COURT: going and we are not again When defense counsel asked go into counsel. That is a matter conclusion, Hayes’s interrupted the court previous to this. is a jury. This new the witness what facts he was asked (R.Vol. 678-79.) III at basing Ill his calculations on. R.Vol. at Following exchange, this left the exchange witness, 674-75. An between the courtroom and defense counsel made an counsel, prosecutor, defense and the offer of proof Hayes’s followed, court the result of which was request with the that she be that the witness testified that he could not *5 impeach Hayes prior allowed to with his any assuming make conclusions without inconsistent The statement. court refused presence yaw the marks on the road the request, apparently based on the impact: prior to ground that there was a lack of foundation: BY INDRITZ: MS. places MS. INDRITZ: The Court me in a Q. is, question My given the evidence position, difficult but I think that it’s there, that you is the evidence as important get for me to into the record be, you know it to can us mini- tell the time, what I asked him last what because mum distance that this vehicle had to I him asked last time assumed all the lane, have in this the northbound facts to be true. lane, impact in order at point to be the THE you COURT: What asked him last you that point described the time, you impeach are him asking not to was? just him. You trying get are to the object. MR. TORREZ: To which I would facts, some additional facts into evidence. minute, THE Hold on COURT: a No, Honor, your MS. INDRITZ: I am you objection. thought make an I that asking impeach asking to am him. I to just question was the I him. that asked impeach him says because he now that Witness, Mr. that isn’t correct? question he can’t answer a he when an- Yes, yaw A. that I have to have the before, question swered the exact same marks, I have to have some marks here physical based on the exact same evi- to bring up indicate that that to dence.
minimum. counsel, And, THE trying COURT: I am you to tell the basis, assuming THE I that facts are COURT: Then on that will same, going that arewe not ever to objection give sustain the and he will not get point, telling to that because am figure, figure that or give he cannot that you he that cannot answer the to the because he doesn’t what know these in because facts are not evidence. it would be. Period. MR. TORREZ: I would like also (R.Vol. 687.) at III out he assuming that that it is a driver operating functioning that is clearly normal- The does not record delineate ly- precise evidentiary issues that in- were example, Any problems not clear wheth- foundation may it is ward. that For volved. use of counsel wished to make relevant for purpose defense have been of ex- er for prior inconsistent statement Hayes’s plaining apparent inconsistency be- purposes only, or whether impeachment Hayes’s positions two presum- tween would inconsistent intended to use the she ably brought jury’s to the atten- to cor- evidence statement substantive through further questioning Hayes tion acci- of how the Smith’s version roborate by government or the court. even Likewise, deci- the court’s happened. dent Although we hold that court Hayes’s prior statement sion to exclude refusing erred defense counsel allow on purposes apparently was based for all question Hayes his inconsist there no foundation ground that was statements, ent we are convinced from our Hayes to make such trial the second the record review of the error was of the court’s rationale statement. prior testimony might harmless. While assuming incongruous; even ruling seems impeach Hayes, worked to we have that foundation was correct was the court anything Hayes’s testimony not read at to state a con- lacking, lack of foundation damaging the second trial was any- witness refused state clusion the Hayes Smith. had been as a defense called simply nothing has to do with primarily witness. His consisted whether use of the witness’s question of description of a scene which accident proper statement was prior inconsistent description already given by corroborated context offered. officer, Lee, police another and which Evan however, not, mysteries These need Hayes’s testimony no different from was at the us. witness’s statement detain There nothing the first trial. conclude, (i.e., that he testimony in Hayes’s the second trial that existed, as it evidence case; thus, im harmed Smith’s it was not wrong lane for the car had been in the portant for Smith’s defense that impact) of 131 feet a minimum Hayes’s impeached. The real value of inconsistent on its face with the plainly then, prior testimony, would have been as (i.e., he made in the second trial statement Hayes’s evidence. scientific substantive *6 conclusion, on he could make no that presented could have to conclusions been existed, about the evidence as it though not re the even would position prior impact). to There the car’s peat them. Even this would have been reason, proce assuming proper no the was Smith, for As men limited value however. followed, why had defense dures been earlier, Hayes’s that the tioned conclusion ques not to counsel should have been able been the lane for car must have prior inconsistent tion the witness about his indication, impact gave no 131 feet before impeach him. attempt statement an to other, the car way one or the about where 613; v. Sis Fed.R.Evid. United States See prior might have been to 131 feet before Cir.1976). (5th to, 534 F.2d 622-23 in either impact; the car could have been Furthermore, inconsist because the fact, conclusion, Hayes’s was lane. originally given was under ent statement extent that harmful to Smith the cross- subject and the witness was oath definitely she had not swerved showed that statement, concerning the the examination yaw cause marks before enough to hard inconsistent itself was ad statement Furthermore, case of the impact. review under Fed. missible substantive evidence (i.e., presented the counsel that 801(d)(1)(A). Smith’s v. Sil R.Evid. United States closing opening state Cir.1984); verstein, (10th content F.2d 737 867 defense wit the content of the ments and Plum, v. 558 F.2d States United the focus testimony) shows that Cir.1977). Therefore, nesses’ court (10th the trial was whether Smith was on refusing inquiry allow erred did not Inasmuch as Smith testimony, purpose intoxicated. Hayes’s whatever had that Smith evidence may testify, directed to- inquiry such roadway, to the left to avoid the collision the particularly swerved she since had al- Felter, testimony Agent ready FBI formally was admitted that the victim spoken died injuries had after the accident. as a result of whom Smith sustained in the Hayes’s prior Ill 610-11. testi- accident. R.Vol. I 203. Again, R.Vol. at at we see no mony, reason had it been admitted substantive disturb exercise court’s discretion in neither have this matter. The purposes, would corroborated court four photographs objected examined the the idea that had nor refuted Smith (Gov’t.Exh. 2, 3, 5) # and excluded left in order to two swerved to the avoid of them. R.Vol. II at 272-73. The other oncoming motorcycle. The exclusion of two were most, proba- admitted because of was, their at harmless er- in depicting scene, tive value the accident ror. including paint markers used as reference II. points. (Gov’t. photograph of the car 22) Exh. proba- was its admitted because of Smith contends the court abused its tive value as to R.Vol. II admitting discretion in evidence of “In- at 257-260. toxilyzer” breath test results. Smith claims the test results were unreliable be- Smith has made a number of other con- (1) cause the machine had not been calibrat- tentions that the admitting court erred in (2) months, approximately ed in two evidence that was proba- irrelevant or that jostled machine had moved and on outweighed tive by prejudicial value police headquarters from hospi- to the effect. We have considered each them tal, (3) sample no breath was saved for they and hold that are without merit. The retesting, later and therefore the results trial court acted within its discretion in little probative value should not each instance. have been admitted. III. essentially This is a claim that the Smith claims that a statement she court abused the broad discretion it has made to Boggio, Edward criminal investi under Fed.R.Evid. 403 to exclude evidence gator for the Bureau Indian Affairs prejudicial whose outweighs pro effect its concerning how happened the accident Martinez, bative value. United v. States should have been suppressed because she (10th Cir.1984). 744 F.2d We hold given was not her rights Miranda court did not abuse its discretion in record, she made the statement. The how
y admitting
technique
the test results. The
ever,
had,
fact,
shows that Smith
testing
samples
breath
for blood alcohol
rights, although
her
Miranda
not
general acceptance
content has
in the scien-
Boggio.
Ill
R.Vol.
449. Further
community,
tific
and thus meets the classic
more, the
to Boggio
statement she made
for admissibility
test
of scientific evidence
spontaneous;
it was not a result of
*7
that was
in
States,
Frye v. United
any questions
interrogation by
or
Boggio.
1013,
293 Fed.
(D.C.Cir.1923).
1014
R.Vol. Ill at 457. See
Island
Rhode
v.
given by
reasons
why
Smith
the results
lnnis,
301,
291,
1682,
446 U.S.
100 S.Ct.
may have been
unreliable went
1689,
(1980);
64 L.Ed.2d
Mincey
297
v.
weight
evidence,
not to its admissi-
385, 398,
Arizona,
2408,
437 U.S.
98 S.Ct.
bility. Smith’s counsel
the opportunity
(1978).
gument claiming in that the court abused admitting photo its discretion in three Smith made has a number of other alle- graphs (1) of lying the ear and of the victim in gations of error. These include allow- challenges of scope direct examination wit- fendant several of the ing the of court’s evidentiary rulings during on cross-exami- to be exceeded the second trial. ness Felter in nation, (2) misconduct the Because believe that the prosecutorial cumulative ef- rulings on the defend- fect of the court’s improper comment erroneous was to form (3) deny on testify, failure to rule defendant a fair I must ant’s failure to dissent. concerning Smith’s motion in limine a government In the trial called conviction, (4) abuse dis- misdemeanor Hayes, officer John a traffic accident re- conducting poten- the voir dire of cretion specialist construction for the New Mexico (5) judicial no- jurors, improper tial use of Hayes State Police. Mr. testified considered each of these tice. We have upon his examination of the accident allegations uniformly and find them to be upon scene and another officer’s measure- presented this court without merit. Smith road, ments of the marks and debris on the separate allegations a dozen with over he motorcycle conclude that the quantity error. observe that the sheer We “would to have probably have been within not, itself, allegations does lend validi- probably its lane for 50 to 60 feet allegation. Further- ty to each individual impact.” Record, supp. vol. at 549. He more, find no indication of cumulative we further testified that at the rate of 55 miles a error the record. This not case hour, road, per speed limit on that occurred, a number of errors all of where motorcycle would have traveled the dis- themselves, which were harmless but tance of 50 to 60 in approximately feet Rather, prejudicial with cumulative effect. Record, supp. six-tenths one second. through allegations we sifted these vol. at 549. At the first trial defendant not did err in error and hold that the court testimony argue used this if rulings, exception. its with one That but motorcyclist traveling per at 55 miles noted, exception, as we have was harmless hour, possible it is that seven-tenths of one of the defendant’s because the focus case second before the accident he could have was elsewhere. defendant’s lane. AFFIRM. WE Similarly, Mr. testified at the first that, given road, the marks on the it is MeKAY, Judge, dissenting: Circuit possible that as close as 131 feet from the appeals Defendant her conviction for in- point defendant’s vehicle could voluntary manslaughter ground Record, proper supp. have been in its lane. she was denied a fair trial in the district vol. at 552. He further testified that at court. hour, per the rate of 50 miles 131 feet would translate into seconds. Defend- 1.8 5,1983, passenger On March car driven ant used this at the first trial to by defendant Doreen Smith collided awith argue vehicle could have Radloff, that defendant’s motorcycle by Mr. driven John proper its lane 1.8 seconds injuries who died as a result of sustained in the collision. the accident. In defendant’s first trial the
jury was unable to reach a decision and the In defendant called Mr. the second trial In court declared mistrial. her second again He Hayes as a witness. testified guilty. trial the found defendant motorcycle was in that at a minimum prior to government proper lane for 50 to 60 feet claims that defendant its refused to allow Mr. negligently was intoxicated and was driv- The court *8 ing motorcyclist’s Hayes testify on the of the road at to as to the distance the side motorcycle traveled that 50- the time of the accident. Defendant claims would have distance, however, either at 55 60-foot she was not intoxicated and had to speed. per any hour or at lesser on-coming the lane in order to miles steered into 3, Record, Hayes was also motorcycle, at 479. Mr. collision with the which vol. avoid pri- again minimum distance veering sharply into her asked what appeared to be defendant’s vehicle could prior appeal, or to the accident just lane to On de- proper lane, in its but testified only have ment if this were the error committed judgment. make that De- My could not the trial. review of transcript that he the me, attempted impeach however, Mr. counsel convinces that the fense cumulative showing by that he had made such effect this other Hayes and errors the dis- estimate, physical on identical evi- trict denying an court the effect of the trial. dence, at the first The court refused defendant fair trial. Two other errors Record, impeachment, I particularly however. with which am to allow concerned are preclude at 678-80. the court’s vol. refusal the admis- sion photographs, of several which were majority the with the court agree I inflammatory and had no any relevance to refusing to allow defense counsel erred in case, issues the and the court’s Hayes prior Mr. about his in- question refusal to objection sustain defendant’s majority the consistent statements. As testimony by father, the defendant’s which notes, the same evidence available similarly irrelevant. Hayes to Mr. at the trial was available at the and following to him second his two The admission was read to the plainly statements were inconsistent. jury prior taking any to the testimony in Thus, defense counsel should have been the case: Mr. allowed about his defendant, Smith, Doreen admits as prior inconsistent statement in order to im- follows: 613; peach him. See Fed.R.Evid. United Radloff, John motorcyclist, the died at Sisto, (5th States v. 534 F.2d 622-23 the scene of the accident which is the Cir.1976). Furthermore, majority as the subject injuries this as a case result out, points the “because inconsistent accident; sustained in that the results of originally given statement was under oath a blood test for alcohol content were subject and the witness was to cross-exami- negative. statement, concerning nation the the Record, vol. at 153. Based on this ad- inconsistent statement itself was admissi- mission, sought the defendant to exclude ble as substantive evidence under Fed.R. photographs of lying Mr. Radloff on the 801(d)(1)(A).” Maj.Op. Evid. (citing at 897 roadway at the scene of the accident. Plum, United States v. 558 F.2d photographs injured These showed an Mr. (10th Cir.1977)). lying roadway, bleeding Radloff pro- I agree cannot majority, with the how- fusely from groin the bleeding also ever, that this error was harmless. It is Record, from the mouth. vol. Govern- true, notes, the majority Hayes’ that Mr. Further, ment’s Exhibits and 3. defend- “conclusion car that the must have ant sought to exclude Government’s Exhib- lane 131 feet impact photograph of the automobile that gave indication, other, no one or showed bits of blood flesh also might the car where purported yellow to have marks that the impact; to 131 feet before the car could government said he witness believed were have been in either lane.” Maj.Op. at 897. pieces yellow of the victim’s raincoat. The But this legitimate objec- misconceives the sought defendant exclude these items on tive sought defendant to achieve with this the basis that the admission covered the merely evidence. The sought defendant to proximate death, cause of and therefore use evidence to show as a theo- any showing further or discussion possibility, retical accident injuries nature served to in- Thus, happened as she claimed it did. flame probative and was not as to important presenta- to the Record, any of issues case. vol. tion of her defense and its exclusion was 2, at 263-68.
not harmless. on the defendant’s nevertheless, might, certainly somewhat hesi- car was relevant to defendant’s Indeed, driving tant to overturn the judg- district court’s evasive defense. defend- *9 the admission of num- object sought did not The defense also ant to have the tes- pictures showing timony Radloff, the condition of the erous of Mr. James father of the damaged victim, automobile after the accident. excluded. The senior Mr. Radloff Record, 257; vol. Government’s Exhib- present was not in New Mexico at the time 22, however, 21. differed its 17 to Exhibit of the accident and had had no contact with pictures depicted in that it a from these many days prior. his son for Mr. Radloff damaged perspective too close to the auto- years testified that he was married 18 mobile to discern the relative of im- named explained his children. He that his and, pact regardless, certainly cumula- son, John, (John’s) had left home on his other, photo- more instructive tive to the birthday with a female job friend to take a the car. graphs of Exhibit was exclud- Mapleton, Record, Utah. vol. at 153- by ed the court at the first trial on the gave 56. He also details of how and go grounds that it did not to the defend- whom he was told his son had been defense, driving ant’s evasive action and in “killed,” photos identified motorcycle court’s words: license, and his son’s driver’s and listed the markings I do believe with those of flesh personal items that had been returned to on there that that is a little bit out Record, him. vol. at 156-58. I hand. think that would tend to—these reason, I can conceive of no de- photographs right here
two show the stipulation fendant’s as to the victim’s iden- thing. same All he testified that tity, allowing the testimony of Mr. Rad- up a closer that was view this one testimony loff. probative His was not right here. any Certainly, of the issues in the case. it inflammatory could have been more than it this, But I do believe on the basis of that Still, may very was. well have achieved going flesh ... Iam not to allow 22 in at government’s only apparent purpose— this time. eliciting sympathy toward the victim and Record, family engendering antipathy his to- supp. vol. at 132. At the second however, Again, standing ward the defendant. the court decided to allow alone, evidence, provided the same into the allowance of this exhibit prosecutor might overturning instruct merit his witness not to talk not the trial pieces about the of flesh and blood on the court’s decision. When this error is com- objected, explicat- hood. The defense counsel stat- I bined with the other errors have ing: ed, however, I must conclude that defend- ant trial. has been denied a fair
We would ask the Court to note that it flesh, does show the and when it is Finally, problem there is a further with say the jury they picture shown to — this case. court’s about-face worth a thousand words. I think if the rulings evidentiary second trial on certain testify officer doesn’t going it is it had made in the first trial creates the to be obvious to the what it is. not, appearance, accurate or whether Record, vol. at 260. from its role as neutral departed the court gave advantage to the judge and undue replied: To this the court course, regardless of the prosecution. Of me, counsel, It’s not obvious to duty to appearance, judges have the cor- that’s what it is. don’t know it is. what experience rect those errors of which added pigeon droppings It could be as far as I ap- An with a case makes them aware. know, going so we are to let it come unfairness, however, even if pearance of for what it’s worth. fact, ques- unfounded in is relevant to Record, reviewing at 260. After vol. prejudice. tion of question, my photographs it is view that 2, 3, cumulative, tragic anyone should die It is indeed photographs and were Further, it is vital that probative of the as Mr. Radloff did. not issues before the were court, to endan- inflammatory. were those drive such who
ger persons the lives innocent
brought justice. includes a full Justice opportunity fair
and for defendant defense, however,
present her and I his or
cannot conclude that defendant was afford- such opportunity
ed an this case.
would hold that the cumulative effect of deny district court’s errors a fair for a
defendant and remand
new trial. MIERA, al., Plaintiffs-Appel
Glenda et Cross-Appellants,
lees and
v. UTAH,
FIRST SECURITY BANK OF
N.A., banking corporation, a Utah De
fendant-Appellant Cross-Appellee. and 83-2101,
Nos. 83-2297. Appeals,
United States Court of
Tenth Circuit.
Nov. 1985. Quinn (Penny
Thomas A. A. Rodeen of Nebeker, Ray, Quinney & with him on brief), Utah, City, Salt Lake for defendant- appellant cross-appellee. Nielson, Utah, City, Parker M. Salt Lake plaintiffs-appellees cross-appel- lants. McWILLIAMS,
Before McKAY Cir-