UNITED STATES of America, Plaintiff-Appellee v. Geshik-O-Binese MARTIN, Defendant-Appellant. United States of America, Plaintiff-Appellee v. David John Martin, Defendant-Appellant. United States of America, Plaintiff-Appellee v. Edward McCabe Robinson, Defendant-Appellant.
Nos. 13-2410, 13-3221, 14-1039
United States Court of Appeals, Eighth Circuit
Submitted: Nov. 13, 2014. Filed: Feb. 4, 2015.
Rehearing and Rehearing En Banc Denied March 12, 2015.
777 F.3d 984
For these reasons we affirm the judgment of the district court.
Paul C. Engh, argued, Minneapolis, MN, for Appellant David Martin.
Caroline Durham, argued, St. Paul, MN, for Appellant Edward Robinson.
Before MURPHY, MELLOY, and BENTON, Circuit Judges.
MURPHY, Circuit Judge.
A jury convicted Geshik-O-Binese Martin and Edward Robinson of robbing and murdering Craig Roy and Darla Beaulieu on the Red Lake Indian Reservation in violation of
Appellants claim improper ex parte contact by the district court with the jury venire. They also challenge their convictions. Geshik Martin contends that the government failed to prove his Indian status under
I.
Law enforcement responded on January 1, 2011 to a fire at the home of Craig Roy on the Red Lake Indian Reservation, a large reservation in northern Minnesota adjacent to the Canadian border. Roy‘s residence was already engulfed in flames and collapsed before fire crews could extinguish the fire. The next morning the bodies of Roy and his partner, Darla Beaulieu, were retrieved from the rubble. Both bodies were charred beyond recognition. Autopsies indicated that Roy and Beaulieu had been stabbed multiple times before the fire and that their death was caused by exsanguination. Details of the crimes were discovered over several months. Law enforcement learned that Roy and Beaulieu had attended a New Year‘s Eve party the night before their deaths and that Beaulieu had a fight there with a woman named Vicki Neadeau. Roy defended Beaulieu and severely injured Neadeau who left the party to tell Terin Stately and other friends about his attack.
According to Stately, Geshik Martin had reacted to the news by urging Edward Robinson, David Martin, Kevin Needham, and George Martin to get revenge on Roy by robbing him of his cocaine. After everyone had allegedly agreed to the plan, Stately drove the group to Roy‘s home and waited in the car while the others went inside. They emerged after 10 to 20 minutes with Robinson carrying a long gun. As Stately drove away from the home, she asked what had happened inside. No one answered.
In August 2012, Geshik Martin, Robinson, David Martin, Needham, George Martin, and Stately were charged under
A.
Jury selection began on February 25, 2013. As counsel prepared to exercise their peremptory challenges, the district court commented that the jurors were waiting to be called forward and offered to meet separately with the 51 person jury venire in order to thank them for their service. The court informed counsel that he planned to answer questions about the differences between federal and state judges but would remain “hands off on cases.” All counsel consented as long as the court‘s comments were recorded.
As agreed, the court then spoke with the jury venire without counsel or any of the parties present. He explained that he would “just kind of make small-talk” and answer any questions the jurors might have. He discussed the differences between state and federal judges, noting that the latter are “appointed for life” while the former are first appointed by the governor and must later run for election to a six year term. He also discussed the methods for summoning jurors, stating that Minnesota ranks “either the first or in the top three for the last few years [for] the highest response rate by citizens to jury summons.” He also explained how jury selection had changed since he “was a young trial lawyer in the seventies, [when] you would show up for jury selection . . . and you would have primarily retired individuals, unemployed people, or part-time students, [but] . . . we have [now] gone [to] almost the other extreme where we have excused almost no one.” The district court commented that although lawyers are commonly stereotyped for “tricking jurors,” juries “usually always make the right decision” but occasionally “take the law into their own hands” by engaging in jury nullification. While the court could not “comment on [this] case,” he mentioned the “O.J. Simpson case” and the “Marilyn Manson trial” in explaining jury sequestration and the duty not to discuss a case during trial. The court closed with this comment: “If it is your secret dream or goal to sit on a case, I hope you get the opportunity . . . [and] if there are no further questions, we will get set up [for trial].”
B.
At trial Stately testified that Geshik Martin, Robinson, David Martin, Needham, and George Martin had conspired to get revenge on Roy for having attacked Neadeau at a New Year‘s Eve party. David Martin had allegedly informed Geshik Martin that he knew where Roy stored his crack cocaine, and a plan was devised to travel to Roy‘s home in order to steal it. According to Stately, the group had agreed that David Martin, who had been living with Roy, would knock on the front door under the guise of retrieving his clothes. The others would then rush in behind him to carry out the robbery. Stately testified that after she had driven “the boys” to Roy‘s home, Geshik Martin returned to the car with blood on his arms, Robinson was carrying a long gun, and all of the defendants disposed of their clothes in garbage bags. Stately also testified that when she had asked Geshik Martin what had happened inside the home, he had responded, “they got killed . . . and [we] lit the house on fire.”
In contrast to Stately‘s testimony, Geshik Martin testified that he had not intend-
After the evidence was received, the district court discussed the jury instructions with counsel. David Martin proposed a lesser included offense instruction for theft. He argued that even if the jury found that he had taken cocaine from Roy, the jury could still find that he had not engaged in a “violent act” and convict him of theft rather than robbery. The government responded that there was no basis for a theft instruction because the evidence showed that David Martin had participated in “forced violence and intimidation for crack cocaine.” The district court decided not to give the instruction.
The jury convicted Geshik Martin and Robinson on all counts of murder and robbery. David Martin was also convicted of robbery, but he was acquitted of murder. George Martin was acquitted on all counts. The district court sentenced Geshik Martin and Robinson to consecutive terms of life imprisonment for their murder convictions and a concurrent term of 15 years for robbery. David Martin was sentenced to 160 months on his robbery conviction after application of a
II.
A.
Appellants argue that the district court erred during its ex parte meeting with the jury venire by commenting on high profile cases, certain lawyer stereotypes, and jury nullification. They contend that these ex parte statements violated their constitutional rights and Federal Rule of Criminal Procedure
The government asserts that our review is only for plain error because appellants waived their right to be present while the court communicated with the jury venire. Although the district judge informed the parties that he would thank the jurors for their service and answer questions about the differences between federal and state judges, he did not limit his remarks to those topics. Defense counsel only learned what the district court actually said to the venire at the appeals stage, but at pretrial they had agreed to the court‘s meeting with the jurors while the attorneys exercised their strikes. Thus, plain error review may not apply. Cf. United States v. Smith, 771 F.3d 1060, 1063 (8th Cir.2014).
We review whether a district court “conducted a proceeding in violation of defendants’ right to be present during every stage of trial under an abuse of discretion standard.” United States v. Barth, 424 F.3d 752, 762 (8th Cir.2005). If a proceeding was conducted in violation of that right, “it is subject to harmless error analysis.” Id. Ex parte communications between judge and jury in the absence of and without notice to the defendant are “presumptively prejudicial.” United States v. Koskela, 86 F.3d 122, 125 (8th Cir.1996). Nevertheless, a “clear indication of an absence of prejudice” can overcome this presumption. Id. A defendant is not prejudiced by ex parte contacts between judge and jury that are merely ministerial in nature and not substantive communications. Shelton v. Purkett, 563 F.3d 404, 408 (8th Cir.2009).
The district judge‘s comments went beyond the topics mentioned to counsel. He spoke of publicized criminal cases and subjects related to jury service such as jury nullification and common lawyer stereotypes. The Supreme Court has cautioned that an ex parte conversation between judge and jury is “pregnant with possibility for error.” United States v. U.S. Gypsum Co., 438 U.S. 422, 460, 98 S.Ct. 2864, 57 L.Ed.2d 854 (1978). An ex parte conversation with jurors by even an experienced trial judge may “generate unintended and misleading impressions of the judge‘s subjective personal views.” Id. As the Supreme Court has explained, such contacts may cause the jury to misunderstand the law despite the good faith of the judge. See id. Our court has warned that “a trial judge should avoid ex parte communications with a jury,” as words and stories can affect jurors in innumerable ways. United States v. Harris-Thompson, 751 F.3d 590, 597 (8th Cir.2014). Potential problems may arise even though the court means no harm or such conversation is part of his “routine courtroom procedure.” Moore v. Knight, 368 F.3d 936, 944 n. 9 (7th Cir.2004). Here, the district court‘s ex parte comments to the jury venire went beyond the topics previously identified to counsel and could be viewed as presumptively prejudicial. Nevertheless, a clear absence of prejudice may overcome any such presumption. See Koskela, 86 F.3d at 125.
On this appeal we have carefully examined the transcript of the court‘s meeting with the jury venire. Nearly all of the challenged comments were ministerial in nature and repeated instructions which jurors generally receive before and during trial. See United States v. Nelson, 570 F.2d 258, 261 (8th Cir.1978). Although the court mentioned the “O.J. Simpson case” and “Marilyn Manson trial,” he did not discuss the facts or the merits of either case. He simply cited them in order to explain the process of sequestration and the jury‘s right to discuss a case after trial, topics which appear in many instructional resources available to jurors. See, e.g.,
Appellants argue that they were prejudiced by the judge‘s comment that lawyers are commonly stereotyped for “tricking jurors” and that juries “usually always make the right decision,” but occasionally “take the law into their own hands.” A defendant has the right to be present at an ex parte conversation between judge and jury only when “his presence is required to ensure fundamental fairness or a reasonably substantial opportunity to defend against the charge.” Harris-Thompson, 751 F.3d at 597. At no point during his ex parte remarks did the district court discuss appellants’ guilt or innocence, or any other “matter pending before the jury.” Remmer v. United States, 347 U.S. 227, 229, 74 S.Ct. 450, 98 L.Ed. 654 (1954). The district court in fact asked the jury venire if it had any questions “as long as it [did not] reflect in any way on the case or anyone involved in the case that 14 of you are about to hear.” The court‘s mention of jury nullification came in response to a question by a potential juror. The court commented that jurors rarely made mistakes and that any mistake was more likely made by a judge. We conclude that its pretrial comments did not affect appellants’ ability to defend against the charges. See Gagnon, 470 U.S. at 526-27. Now having been fully informed about what was said by the court to the jury venire, appellants have not shown they would have “gained anything by attending” the ex parte meeting. Harris-Thompson, 751 F.3d at 597.
After careful review of the record, we conclude that any violation of Rule
B.
In this case the government was required to prove for each of the charged offenses that appellants are “Indians” within the meaning of
When reviewing the sufficiency of the evidence, we look at the evidence in the light most favorable to the government and accept all reasonable inferences that support the verdict. United States v. Anderson, 570 F.3d 1025, 1029 (8th Cir.2009). The verdict will be upheld if “any interpretation of the evidence would allow a reasonable-minded jury to find the defendant guilty beyond a reasonable doubt.” United States v. Teague, 646 F.3d 1119, 1122 (8th Cir.2011). Even if “the evidence adduced at trial rationally supports con-
Martin contends that the stipulation of fact was insufficient to prove his Indian status within the specialized meaning of
Martin also argues that the district court erred in admitting the stipulation because he had not knowingly and voluntarily agreed to its admission. As a mixed question of law and fact, we ordinarily review de novo the district court‘s determination that a defendant knowingly and voluntarily stipulated to an element of an offense. See United States v. Vest, 125 F.3d 676, 678 (8th Cir.1997). Since Martin did not raise the issue before the district court, however, we review only for plain error. See United States v. Olano, 507 U.S. 725, 733, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993); see also
Stipulations to an element of a charged offense must be knowing and voluntary, but an inquiry as thorough as that required by
To the extent Martin cites Stalder and Lawriw to suggest an alternative rule, he confuses the issues. In those cases the defendants had stipulated to “every fact alleged in the indictment, thereby effectively admitting [their] guilt.” Stalder, 696 F.2d at 60; accord Lawriw, 568 F.2d 98, 105 n. 13 (8th Cir.1977). We have thus required “a careful inquiry on the record” to determine whether “the defendant knew what he was doing and understood the consequences of his stipulation.” Stalder, 696 F.2d at 62. Because the record in Stalder showed that the defendant had agreed to the truth of the stipulated facts and that he had understood the consequences of his stipulations,
Prior to trial Martin and his counsel signed a stipulation establishing that he was an Indian for purposes of each offense charged in the superseding indictment. At trial the government read the stipulation to the jury, and the district court asked whether counsel agreed to it. Counsel answered affirmatively. The court then entered the stipulation in evidence in Martin‘s presence. No objection was raised when the stipulation was signed or at any time after it had been entered. Since Martin knowingly and voluntarily stipulated to his Indian status under
C.
Before and during trial Robinson moved for a severance, and the district court denied each motion. Robinson now argues that the district court abused its discretion by denying the motions to sever his trial from that of his codefendants. See
In Zafiro v. United States, Supreme Court considered “whether Rule 14 [of the Federal Rules of Criminal Procedure] requires severance as a matter of law when codefendants present mutually antagonistic defenses.” 506 U.S. 534, 535, 113 S.Ct. 933, 122 L.Ed.2d 317 (1993). The Court rejected the petitioners’ request to adopt a bright line rule “mandating severance whenever codefendants have conflicting defenses.” Id. at 538, 113 S.Ct. 933. It reasoned that “[m]utually antagonistic defenses are not prejudicial per se,” and the only time a court should sever a trial is when “there is a serious risk that a joint trial would compromise a specific trial right of one of the defendants, or prevent the jury from making a reliable judgment about guilt or innocence.” Id. at 538-39, 113 S.Ct. 933. The Court concluded that the petitioners had not been prejudiced by the consolidated trial because the government “offered sufficient evidence as to all four petitioners” that was independent of the conflicting defenses. Id. at 540, 113 S.Ct. 933. It also noted that even if there had been a risk of prejudice, the court cured it by instructing the jury that “[e]ach defendant is entitled to have his or her case determined from his or her own conduct and from the evidence [that] may be applicable to him or her.” Id. at 541, 113 S.Ct. 933.
Like the petitioners in Zafiro, Robinson argues that he suffered clear prejudice because his trial defense contradicted those of his codefendants. While Robinson denied having been at Roy‘s home when the murders occurred, Geshik
The district court cured any remaining risk of prejudice when it instructed the jury that “[e]ach defendant is entitled to have his case determined from evidence as to his own acts, statements, and conduct and any other evidence in the case which may be applicable to him.” The court also went beyond the instructions in Zafiro when it said that even if “you find one defendant guilty or not guilty of one of the offenses charged [this] should not control your verdict as to any other offense charged against that defendant or against any other defendant.” It then instructed that “[y]ou must give separate and individual consideration to each charge against each defendant . . . [and you] must consider each instruction given by the Court to apply separately and individually to each defendant on trial in this case.” Given these instructions and all the evidence specifically related to Robinson‘s case, the district court did not abuse its discretion by denying a severance based on his claim of mutually antagonistic defenses.
Robinson next asserts that even if he was not prejudiced by mutually antagonistic defenses, he was denied a fair trial because the jury was unable to compartmentalize the evidence against him. When assessing the ability of a jury to separate evidence against codefendants, we consider “the complexity of the case, whether any of the defendants was acquitted, and the adequacy of the jury instructions.” United States v. Casteel, 663 F.3d 1013, 1018 (8th Cir.2011). Only in an unusual case will any prejudice resulting from the ability of a jury to separate evidence be “substantial enough to outweigh the general efficiency of joinder.” United States v. Al-Esawi, 560 F.3d 888, 891 (8th Cir.2009). This is not such a case.
While this case had some complexities, the verdicts showed that the jury was able to consider the evidence separately against each defendant. Unlike Robinson and Geshik Martin, David Martin was acquitted of the murder charges and George Martin was acquitted on all counts. The district court had instructed the jury to give “separate and individual consideration to each charge against each defendant” and to consider “each instruction given by the Court to apply separately and individually to each defendant.” See United States v. Ghant, 339 F.3d 660, 666 (8th Cir.2003). These “careful and thor-
Robinson finally argues that the government violated his Fifth Amendment right to remain silent by commenting on his failure to testify. In her closing argument the prosecutor stated that “the only people that are actually going to talk about what occurred at the house are Geshik Martin and David Martin. That is who you heard from.” District courts have broad discretion to supervise closing arguments, United States v. Littrell, 439 F.3d 875, 881 (8th Cir.2006), and a conviction will be reversed for an improper statement only for some clear abuse, United States v. Davis, 534 F.3d 903, 914 (8th Cir.2008). When an appellant has failed to object to an argument in the district court, its propriety is reviewed only for plain error and reversed “only under exceptional circumstances.” Id. The Fifth Amendment forbids direct comment by the government on a defendant‘s failure to testify, or any indirect references to it if motivated by an “intent to call attention to a defendant‘s failure to testify or would be naturally and necessarily taken by a jury as a comment on the defendant‘s failure to testify.” Graham v. Dormire, 212 F.3d 437, 439 (8th Cir.2000) (citing Griffin v. California, 380 U.S. 609, 615, 85 S.Ct. 1229, 14 L.Ed.2d 106 (1965)). Both tests require attention to the entire context of the remarks, including “the argument itself, and the larger context of the evidence introduced at trial.” United States v. Durant, 730 F.2d 1180, 1184 (8th Cir.1984).
While Robinson concedes that the challenged remarks were not direct comments on his failure to testify, he maintains that the prosecutor indirectly commented on it when she stated that Geshik Martin and David Martin were the only defendants who had testified at trial. The government responds that its closing remarks were intended to call attention to the incredibility of Geshik Martin rather than to Robinson‘s silence. The context of the closing argument supports this explanation. Immediately after the prosecutor commented that Geshik and David Martin were the only defendants who had testified, she asked the jury to “evaluate the testimony of Geshik Martin” carefully because “his account of events just is incredible.” She then identified numerous “internal inconsistencies” in his testimony in order to disprove his theory of self defense. Considered as a whole, the prosecutor‘s closing remarks were structured to rebut Martin‘s testimony, not to call attention to Robinson‘s silence. See United States v. Porter, 687 F.3d 918, 922 (8th Cir.2012).
We also conclude that the jury would not have “naturally and necessarily” viewed the prosecutor‘s remarks as a comment on Robinson‘s failure to testify. The jury must have been aware of the government‘s strategy to impeach Geshik Martin‘s testimony after listening to his cross examination, so its closing argument was likely to have been understood by the jury as a critique of Geshik Martin‘s theory of self defense. See Durant, 730 F.2d at 1184. The Supreme Court has warned that “a court should not lightly infer that a prosecutor intends an ambiguous remark to have its most damaging meaning or that a jury, sitting through lengthy exhortation, will draw that meaning from the plethora of less damaging interpretations.” Donnelly v. DeChristoforo, 416 U.S. 637, 647, 94 S.Ct. 1868, 40 L.Ed.2d 431 (1974). In the context of this trial, the prosecutor‘s remarks were not improper and the dis-
D.
Prior to jury deliberations David Martin proposed a lesser included offense instruction on theft, and the district court declined to give it. Martin now argues that the district court erred in refusing his request. We review the decision for an abuse of discretion. United States v. Anthony, 537 F.3d 863, 866 (8th Cir.2008). A defendant is entitled to a lesser included offense instruction if: (1) a proper request is made; (2) the lesser offense is identical to part of the greater offense; (3) there is some evidence that would justify conviction of the lesser offense; (4) the proof of an element differentiating the two crimes is sufficiently disputed so that the jury might consistently find the defendant innocent of the greater and guilty of the lesser offense; and (5) there is mutuality. E.g., United States v. Short, 805 F.2d 335, 336 (8th Cir.1986). We will generally affirm a district court‘s refusal to instruct the jury on a lesser included offense when the defendant has claimed innocence throughout trial. See United States v. Knox, 634 F.3d 461, 464 (8th Cir.2011) (collecting cases).
In United States v. Collins, for example, we affirmed the district court‘s refusal to give a lesser included offense instruction of possession of a controlled substance when the defendant had claimed “complete innocence” to simple possession and possession with intent to distribute. 652 F.2d 735, 742 (8th Cir.1981). We reasoned that there was no rational basis for instructing the jury on the lesser offense because “the jury either believed [the defendant] had nothing to do with the transaction or was guilty as charged.” Id. Although Collins involved different factual circumstances than here, the same general principle applies. Indeed, in Knox, we found “no reason not to apply this general rule” to a request for a lesser included instruction of simple assault when the defendant had claimed complete innocence at trial. 634 F.3d at 464.
As in Collins and Knox, Martin maintained complete innocence at trial. During opening statements his counsel asserted that he had not committed or intended to commit robbery or theft. According to counsel, Martin had intended to take only “what [was] rightfully his,” namely some clothes he had left at Roy‘s home and a “share of crack” Roy owed him. Martin similarly claimed innocence throughout his testimony. He testified that he was innocent of the charged offenses because “he didn‘t go [to Roy‘s home] for no confrontation.” He had gone there “just to get [his] clothes.” Martin also denied taking any money or crack cocaine from Roy that night, discarding his clothes after returning from Roy‘s home, or participating in any crime that may have been committed. If the jury had credited Martin‘s version of the events, it would have acquitted him of all charges. As a result, the jury could not have acquitted him of robbery but convicted him of theft. See, e.g., United States v. Milk, 281 F.3d 762, 771 (8th Cir.2002). The district court thus did not abuse its discretion in refusing to give the theft instruction.
Martin also argues that the district court erred by considering acquitted conduct in applying a six level enhancement to his sentence for infliction of permanent bodily injury under
Martin finally contends that the district court erred in applying the six level enhancement because he could not have foreseen that the robbery would result in “permanent or life threatening bodily injury.”
At sentencing the district court found that “[e]veryone knew, if not a murder, [there] would be violence in [Roy‘s] home and there would be injury in that home to one or both parties.” The record supports those findings. At trial Martin testified that Roy was “very angry,” “liked to scream and yell,” and that he and Roy had “gotten into it a couple of times” in the past. Martin also knew that Roy had attacked his girlfriend, Vicki Neadeau, just a few hours before the robbery. He testified that her “arm was in a sling [and] she had some kind of cut or bruise on her forehead” as a result of Roy‘s attack. Moreover, Martin had informed the other defendants while they were planning revenge that he knew Roy owned a gun and where he stored his cocaine. Martin then traveled to Roy‘s home aware of his proclivity for “violence.” On this record the district court did not clearly err in finding that Martin “knew [there] was going to be violence” at the home. The six level enhancement for infliction of permanent or life threatening injury was thus properly applied to his sentence.
III.
Based on the above, we affirm the judgments of the district court.