United States v. John C. Sheffey

America, UNITED STATES

Plaintiff-Appellee, SHEFFEY, Defendant-Appellant.

John C.

No. 93-6534. Appeals,

United States Court

Sixth Circuit. 5,May

Submitted 1995.

Decided June Cook, Atty., Knox- H. Asst. U.S.

Steven (briefed), ville, plaintiff-appellee. TN TN, Bell, Greeneville, Kim A. H. William Tollison, Defender Services Federal TN, (briefed), defendant-appel- Knoxville lant. BOGGS, Circuit

Before: RYAN and ROSEN, Judge.* Judges; District ROSEN, D.J., opinion of delivered BOGGS, RYAN, J., court, joined. in which 1433-35), separate opinion (pp. J. delivered part dissenting part. concurring in ROSEN, Judge. District May p.m. on approximately At 3:20 Defendant-Appellant John C. car (“Sheffey”), his on Little while Smokey Mountains Na- in Great River Road Tennessee, Park, awith ear collided tional car Money. In the Martha driven Rosen, designation. gan, sitting by E. United *The Honorable Gerald Judge of Michi- the Eastern District District Money parents, year Ms. were her William and teen old child that he did not know that As a Lastly, Sheffey’s Mamie Shackelford. result of the acci- he had. just landlord had dent, apartment Mr. Shackelford died and Mrs. evicted him from Shackel- because his Money injuries. delinquent ford and Ms. roommate suffered serious with his pay- rent Sheffey ments. claimed that at the time of 2, 1993, grand jury On June a federal go. accident he had App. nowhere to against issued a three count indictment Shef- 122-27. fey charged which him with one count of degree 14, 1993, May Sheffey second murder and two counts of On sought medical resulting bodily help injury. physician, assault serious from a Maughon. Dr. Shef- 24-25, Sheffey August fey on Maughon stood trial told Dr. of his excessive drink- ing and was on all personal problems. convicted three counts. and other Dr. Mau- ghon put Sheffey waiting clinic, on a list for a Sheffey appeals now for conviction sec- prescribed and he for him a sedative called degree grounds. ond murder on five different App. Librium. 128-29. First, Sheffey contends the district court permitting erred in four Sheffey witnesses to answer prescription filled the the next “[wjhether, your opinion, day, forty and he received milligram ten [Sheffey] driving recklessly capsules. and in prescribed ex- The dosage was six Second, capsules treme for human life?” per day. pharmacist The who filled Sheffey argues that the instructions that prescription warned him that the gave district court on distinguish drug which, turn, how to causes drowsiness may involuntary manslaughter murder from amplified by combining be drug inadequate Third, as a statement of law. pharmacist alcohol. Sheffey instructed Sheffey asserts that there was insufficient that he should not drink alcohol while he was supporting taking his conviction for second drug, and ap- this caution also Fourth, Sheffey argues peared warning murder.1 on labels attached to the appeal the first on drug’s time that Assistant App. United container. Sheffey 111-12. re- Attorney Cook, prose- H. prescription May Steven who filled the sug- on Sheffey, cuted should gests taking have recused himself that he was more than the rec- sentencing hearing from the dosage. however, because he had Sheffey, ommended testi- recently family suffered a death in the due to fied that he prescription refilled the because ' a drunk finally, Sheffey driver. Fifth and he had lost the first bottle. urges us to overturn his conviction because Sheffey admitted at trial that he had taken anti-drunk-driving there were members of drinking heavily Librium and had been organizations present at his trial who wore 22, 1993, May day of App. the accident. noticeable buttons and who have had 136. He had left work at p.m. around 3 jurors during Again, contact with the trial. Toyota proceeded his 1992 Corrola and he raises this issue for the first time on nearby Smokey Great Mountains National appeal. Sheffey Park. stated that he was familiar reasons, following

For the Road; however, we affirm the with Little River he did not judgment of the district court. any May recall of the events of 22 after the App. Sheffey

time he left work. added I. anyone he did not intend to hurt on that Id. day. The facts of dispute. this case are not in

Sheffey forty-five year is a old man only testify with a other witness who actu- history collision, ally alcohol abuse. At the Money, time saw the Ms. had little accident, Sheffey experiencing say claims he was about the matter. She stated that she devastating personal problems. driving financial on her side of the road and He and separated approaching his wife were and in speed a curve at a ten process getting per suddenly divorce. fifteen hour miles when Shef- being fey’s sued for child for a six- car slammed into hers. trial, Sheffey guilty involuntary manslaughter. 1. At conceded that he was at least it is. But eyewit- Sure Mr. Cook: consisted of proofs The bulk having been have the doesn’t benefit people who were four testimony from ness there, why couldn’t [it] I behind, shortly don’t know of, driving in front Rule 701. her under pas- consider was a Linda Vitale accident. before the Sheffey. driven behind senger in a minivan she’s on the fact that The Court: Based very River Road that Little testified She can I think she years, been one cannot see curvy, narrow opinion is. say what her also stated that She around the curves. (continued): By Mr. Cook a cliff on to one side and a mountain road has whether, your based on Q. Would tell us other, very little room to so there conduct of the Defendant’s observations despite added that Ms. maneuver. Vitale having driven your experience in Sheffey the car dangers followed these whether, your years, in that number closely very and on several him front of acting reck- was opinion, the Defendant yellow the double darted across occasions disregard human lessly in for and extreme Sheffey later did pass. to in an effort line life? pass car in yellow line to double cross the sure, definitely. my opinion, A. in of it. a van front him as well as front of App. 49-50. Sheffey pro- then testified Ms. Vitale in of him van front tailgate to another ceeded Gilliland, and Ms. husband Dennis Vitale’s per miles about 25-30 for several miles at carrying both of of the minivan the driver Sheffey appeared Ms. Vitale hour. It to virtually testimony to identical them offered closely enough bump following was that when He also his wife’s. remembered Moreover, Sheffey recalled that she van. immediately Sheffey passed the second van door of pounding the shaking his fist and accident, blew out before the blue smoke the van. This anger as he followed his car in Sheffey’s As Mr. Gilli- car. the exhaust minutes, Sheffey for several van, continued no- Sheffey past the he land followed yellow line at darting across double Sheffey to accelerate into ticed continue The ahead of pass. in an van times effort accident oc- in the road where the curve a limited shoul- Sheffey finally pulled over to 53-63, App. curred. road, Sheffey passed next to the der area testimony in much closed Mr. Gilliland’s yellow line. by crossing the double quickly way as his same wife’s: shortly thereafter. happened accident The Q. your of the De- Based on observations 42-47. App. conduct, you tell us wheth- fendant’s could direct very of Ms. Vitale’s At the end er, acting your opinion, in reckless- he following exchange place: took testimony, the disregard human life? ly, in extreme Attorney Q. [By Assistant United honor, again, I’m Your Mr. Tollison: your on observations Cook:] Based object question. going to to that conduct, you tell us would Defendant’s The Court: Overruled. whether, he was your opinion, in A. Yes. disregard recklessly in extreme App. 63. human life? witness. He Kirk Leonardi was the next Your counsel]: [defense Mr. Tollison Sheffey of the van which was the driver honor, That’s the ulti- object I that. shortly accident. He stat- passed before the jury. mate decision of the closely, Sheffey following him ed that honor, I think under Mr. Cook: Your Sheffey he and his wife feared and that 70— Rule Sheffey saw would ram their van. He also I don’t think she can Mr. Tollison: him, and he recalled shaking his fist at make that decision. Sheffey pass van at least twice tried to their 701— I under Rule Mr. Cook: think by pulling into eventually so before he did Leonardi was oncoming traffic. When Mr. That’s the Mr. Tollison: over, noticed that Shef- honor, finally pull able to he jury; your please— fey passed very quickly him disap- then opposing side traffic lane. Mrs. Leo- peared right By around a curve the road. nardi stated then that her husband saw an road, got the time Mr. Leonardi on oncoming back car and sped up to allow App. the accident had occurred. 70-79. slip room to in behind their van. Mrs. Leo- nardi added that when her pulled husband Mr. Leonardos direct ended over, Sheffey drove around them “like a bat following with the colloquy: out of hell.” The Leonardis did not up catch Q. your Based on of Mr. observations until reached the curve Sheffey’s driving, you would tell us wheth- occurred, where the accident a turn that Mrs. er, your opinion, acting he was reckless- Leonardi “hairpin” as a described one. App. ly disregard extreme for human life 80-84. in the fashion in driving? which he was honor, Government Tollison: also asked object Mr. Your I Mrs. Leonardi opinion for her question again. driving: Court: Q. Overruled. your Based on observations of the De- (continued): conduct, By fendant’s actions Mr. Cook would you your tell us whether he was Q. you repeat Do want me to it? acting recklessly and in Yes, please. A. for human life? Q. your Based on observations of the De- honor, Mr. Tollison: Your I’ll make fendant, conduct, Defendant’s way and the objection. same driving, he was would you tell the ladies gentlemen whether, and your in The Court: Overruled. opinion, acting recklessly he was and in (continued): By Mr. Cook disregard extreme for human life? Q. You answer. A. It was evident to me that he did not Yes, A. I can my answer? in entire driv- regard my safety regarded my like I safe- career, ing my and even as career aas ty. why That’s I pulled off the road. I passenger that, prior a car to I have thought I danger. was in why That’s I never seen driving like that. pulled off the road. App. 84. Q. you Did driving placing view his being or as others Parish, Julie a United Rang- States Parks life?

human er who arrived on the scene after the acci- pass anyone road, dent, A. To you’d on that described the curve where the accident have to complete disregard have degree for hu- occurred as a 90 turn. She stated man life. such, the curve is marked as but no speed posted. limit is Ms. Parish also testi- App. 75-76. fied that speed a safe to making drive while eyewitness last to leading the events per this turn is 10 posted miles hour. The up to Leonardi, the accident was Susan Mr. speed limit for Little River Road is 30 nadies passenger Leonardi’s wife and the in his van. per straightaways hour for and 20 per miles She testified that were at or Lastly, hour for curves. Ms. Parish added posted speed near the limit she recalled up that about two miles the Little River per of 25 miles hour. Sometime after Shef- Road was pass a safe area vehicles. App. fey began them, tailgating her husband 98-99. lights signal Sheffey flashed his to back Sheffey while, off. did back off for a but Another Ranger United States who inves- then tailgate accelerated to tigated their van once Sheffey’s the accident found in car again. thought Mrs. Leonardi Sheffey bottles, empty pint two vodka at least one going can, strike their Sprite cans, van when he accel- unopened five beer one them, up back erated can, and she braced for partially empty beer and a bottle of an impact. Mrs. Leonardi also testified only twenty-four with capsules Librium re- turn, while her navigating husband was maining. capsules absence sixteen Sheffey’s pulled car halfway May about to their prescription only from the two individuals, his sen- who attended Sheffey may have other two suggested that days later broke down tencing alleging that Mr. Cook dosage prescribed than more consumed hearing sentencing when ranger who tears at day. The same capsules of six injury various the death he recounted Sheffey’s van inter- the contents checked a drunk at the hands of family members days after the accident. him a few viewed (2) affidavits Sheffey submitted interview, driver. Sheffey admitted During that ex-wife, sister, private day from his Sprite on the mixed with drinking vodka staff who spoke with court investigator who accident, that he farther stated of the third-par- Sheffey alleging trial per attended the miles driving 40 to 45 thought he was specifi- jury. More ty before misconduct 110.2 App. hour. that members cally, affidavits state proofs with closed The Government’s (Remove In- anti-drunk-driving groups two drug performed test results of a (“RID”) East Ten- and the Drivers toxicated a half two (approximately p.m. at 5:50 Force Rights Task Victims’ nessee after, accident). revealed The test hours trial, (“ETVRTF”)) wore present at his grams per 100 .22 level of a blood alcohol insignia easily identifiable various micrograms of 4.2 milliliters of blood courtroom, went so cause of their App. 121.3 of blood. per Librium milliliter jurors on the eat lunch far as to proofs, district all the At the end of to this last basis respect case. With impor- jury. The most court instructed no time did he Sheffey admits at appeal, purposes of gave for the tant instruction to the attention bring matters these whether on the issue of appeal court. district mur- committed second had manslaughter. The dis- involuntary der or II. trict court stated: be- gentlemen, difference Ladies and appeal ground of first malice, support a convic- will which tween permitting Ms. by trial court erred murder, gross negligence, tion for Vitale, and Mrs. Leo and Mr. Gilliland Mr. involun- a conviction for permit which will question whether nardi answer the degree. one of tary manslaughter is recklessly driving Sheffey was believed requires proof degree murder disregard for life. Shef Second human legal of afore- beyond doubt malice for a fey argues a reasonable that this calls may and, opin constitute thought. alternatively, that such Recklessness conclusion the defendant aforethought testimony impermissible where because malice was ion human disregard for The Govern helpful jury. acts with extreme to the was not preserve Sheffey did not life. ment counters counsel appeal because his these for issues Thus, acts with the defendant where ques only grounds that the objected on the which is human life reckless opinion on the ultimate for an tion called nature, a defendant not of an extreme (cid:127) argues issue of fact. The Government involuntary man- only of be convicted testimony properly ad opinion that this slaughter. assuming Sheffey preserved his mitted even Sheffey’s plea jury rejected App. 147. The objection to it. involuntary man- only guilty of to be found guilty a slaughter, it returned verdict analysis of require an two issues These degree murder. second Evidence, 704 and Rule Rules of Federal “[Tjestimony in 704 states: the Rule 701. Rule that form elements The final factual (1) otherwise opinion of an or inference the form Sheffey’s appeal are these: Shef- basis of objectionable because it em- is not from his admissible fey affidavits sister submitted presump- law create a thought 3. federal and state ranger he had Both that he told the blood alcohol intoxication when one's 321, tion nearby. another U.S. road been grams per See 36 level .10 milliliters. App. 110. 55-10-408(b). 4.23; § § Tenn.Code Ann. C.F.R. an braces ultimate issue be decided Sheffey first challenges the admission part, trier of fact.” Rule for its states: testimony of the grounds on the that it called If testifying the witness is not as an legal was, ex- a therefore, conclusion and pert, testimony the witness’ unhelpful the form of jury.4 course, Of not all opinions or inferences is limited to those testimony expresses on an (a) opinions or inferences which are ration- ultimate ipso issue is unhelpful to the facto ally perception based on the of the witness jury. Rule 704 removes general “pro (b) helpful understanding a clear scription against opinions on ‘ultimate issues’ testimony the witness’ or the determina- and shift[s] the focus to whether the testimo tion fact issue. ny is ‘otherwise admissible.’” Torres v. Oakland, County supra, at 150. cursory Even a review of these rules and the trial record demonstrates that Torres, plaintiff brought a Title VII preserved right appeal the admissibili suit alleging origin national discrimination ty lay of the opinions witness in this case. after promotion. she failed to receive a Dur- 103(a)(1) added) (emphasis Fed.R.Evid. re trial, ing defense counsel Quiroga, asked Dr. quires party opposing the admission of one of the individuals involved in the inter- timely objection evidence to make a “stating process, view whether she believed “that Ms. specific objection, ground specif if Torres had been against discriminated be- ground ic apparent from, was not the con cause of origin her national in that interview ease, text.” In this both Rule 704 and 701 process.” objection, Over Quiroga Dr. presented to the district court before it answer, permitted to and stated that she did admissibility ruled on the lay witness not believe any there was discrimination. Moreover, opinions. Rule the basis 758 F.2d at 149. upon Sheffey plainly relied at trial to testimony inadmissible, hold that appeal, plaintiff On argued that because clearly incorporates analysis of Rule 701 Quiroga’s testimony Dr. was couched as a language inclusion of the “otherwise ad conclusion, legal helpful it was not words, missible.” In Sheffey’s argu other under Rule 701. panel agreed, The Torres ment before the district court that the testi stating: mony was inadmissible because it embraced problem containing Sheffey’s guilt ultimate issue of for sec conveying conclusion is in the wit- rejected ond murder could not be erroneous, unexpressed, ness’ perhaps unless the district court considered the ad legal jury. standards to the “in- This missibility lay opinion witness province the vade[s] of the court to deter- under Rule 701. Because Rules 704 and 701 applicable mine the law and to instruct the presented to the district court —both Although judges as to that law.” trial explicitly by arguments the of counsel and relatively degree are accorded a wide implicitly by integrated the nature of an in admitting in excluding discretion testi- quiry lay into testimony whether witness on mony arguably legal contains a con- an ultimate issue for the is admissible— clusion, that discretion is not unlimited. Sheffey may we hold that proceed with his This appropriate discretion is it because is arguments against testimony. the See Tor often legal difficult to determine whether a Oakland, County res 149 (6th testimony. conclusion Cir.1985) implicated the (holding objection & n. lay opinion specify witness which did not (citations omitted). 758 F.2d at 150 grounds objection the for the nonetheless preserved possible the appeal; error for the Torres then announced the test that should ruling district lay applied determining court’s the be question witness whether a “may opinion sufficiently state her posed lay that” to a impermis- witness calls for an presented objection). legal context of the sible conclusion: giv- does rationally upon percep- not contend that the answers based own witnesses' lay en the witnesses in this case failed the first tions. test, prong namely, they of the Rule 701 be to revisit no reason see problem We type this resolution The best ques if an holding of Torres: terms used central determine whether

is to involve lay does not separate, posed distinct to a a tion witness have witness special law meaning separate, in the distinct and a specialized terms with different If the vernacular. present from that meaning in the different ized law from Thus, appropriate. do, vernacular, exclusion witness then the in the present certain asked whether a witness was objection when that it calls may answer it over the “unlawful,” trial court conduct Applying that stan legal for a conclusion. testimony since excluded properly case, not see we do to the facts of this dard understanding of an that demand “terms question legal in the any specialized terms criminal law” scope of the the nature accident, Sheffey, at time of “Did Mr. properly excluded. be disregard of recklessly and in drive omitted) (citations (emphasis F.2d at 151 this Simply because human life?” added). this standard Application of jury instruction terms of the embraced panel to conclude Torres led the facts of not dictate a aforethought does on malice indeed error had occurred: legal conclusion ruling it called for question put language of the precise Indeed, jury instructions by Torres. defined “Torres had Quiroga whether Dr. rely upon carefully drafted and crafted are against because of her discriminated been understood commonly used and terms concluding that origin.” national They jurors to draw permit vernacular. legal con- improper an question called for in mak everyday experience own from their clusion, rely upon several factors. we conclusions, in this as the one ing legal such First, almost verbatim question tracks guilty second case that applicable statute. Ti- language of “reck nothing in the terms murder. We see employer makes unlawful tle VII human disregard of lessly” and “extreme ... any individual against to “discriminate attempt jury to require the life” that would ... national of such individual’s because of art or legal for itself terms to define Second, term “discrimination” origin.” experi life rely upon anything their own but law, and meaning in the specialized has a Sheffey’s guilt.6 There determining ence in distinctly has a less lay use the term not fore, court did hold that the district we meaning. precise despite by admitting the answers Shef err carefully that a more emphasize We legal they called for fey’s protests that have elicited simi phrased question could conclusion. problem and avoided lar information containing holding conclusion. its further We draw Qui- Dr. cases, have asked defendants could v. Stewart another of our from Heflin (6th Cir.), national believed Torres’ roga Tennessee, whether she F.2d 709 County, hiring decision. 598, 121 origin denied, U.S. -, “motivated” 113 S.Ct. cert. directly ad type (1992). ease, would This plaintiffs In that L.Ed.2d 535 Malueg’s[5] issue of Dr! dress the factual pre-trial detainee family members of were any legal termi implicating intent without county jail. in a hung himself to who death nology. alia, defendant alleged, Plaintiffs inter acting by § omitted). 42 1983 (citations officers violated U.S.C. Never- F.2d at 151 758 deceased’s indifference to the with deliberate theless, error to found the panel the Torres found needs the officers serious medical once Id. be harmless. question. given the or elucidation when proofs that Dr. context in Torres demonstrated 5. The respect put example, question was to Ms. Malueg decisionmaker with when the was the final For sure, application. Vitale, at plaintiff's promotion my opinion, responded, "In she directly, responded definitely.” Mr. Gilliland responses Mr. and Leonardos "Yes.” Both Mrs. question clearly responses to the 6. The witnesses detailed, clearly they re- still more but were they under- had no trouble demonstrate that standing they question. the understood flected it, import meaning and that the or explanation, not need to ask for further did body. proofs The showed that defendant verdict ground on the that Totten’s testimony nothing officers did to cut down the impermissible de- contained an legal conclusion. body or to him until rejected ceased’s resuscitate well argument with the fol- Heflin body after was discovered. The district lowing reasoning: that judgment court ordered be entered on problem The real statement, ac jury plaintiffs. verdict in favor cording defendants, is that it did not F.2d at 711-12. assist the in determining whether the Among defendants presented deliberately the evidence at trial was indifferent to Totten, Rather, Heflin’s expert medical needs. Edward it consti opinion tuted an key the field of correctional on a legal institutions. issue in the case, and was inadmissible under Rule stated, training provided Totten by “The Evidence_[7] of the Federal Rules of the Tennessee Corrections Institute and every jailer training other program that I plaintiffs that, respond context, requires jailer, am familiar with when he opinion Totten’s was based on the facts hanging, discovers an inmate to find some- and on his conclusion that the defendants thing or someone to person’s completely had disregarded prescribed weight, assistance, to call for and assure practices dealing with an inmate found application the immediate of first aid hanging. He used “deliberately indiffer- by persons.” CPE trained and/or ent” in way an ordinary laymen would jailer statement added that describe such conduct —to state his opinion fact, cut immediately should the victim down on the ultimate not to state a person holding body up with one conclusion. The district court’s in- structions, cutting the other noose. advising Officers addition to that an expert’s by opinion should never stand and let hanging should be received with caution, victim hang protect charged continue to in order to that in order for Further, hable, the “scene of the crime.” defendants to even their be conduct though signs, “deliberately there are no vital must be officers indifferent tanta- presume should not already punish” that death has mount to an intent to or “conduct people occurred. which today “‘Dead’ are shocks the alive conscience.” Totten did express contrary, due to CPR.” On not an opinion officers on whether the presume hanging should defendant’s inmate is conduct was tantamount to an by punish alive and administer intent to first aid until told the conscience. shocked physician stop. emphasized Totten body that Heflin’s still warm .and We do not the district court com- believe his feet were touching the floor. “For the mitted permitting reversible error Sheriff, Deputy Crutcher Jailer Luff- particular to hear this evidence. Tot- man to him hang allow to continue to ten did not claim expert to be an on the unsupported and saving the life withhold legal requirements recovery jail from by Training measures mandated TCI un- officials for duty. dereliction He testi- contrary der these circumstances concerning proper fied procedures training their sense.” common be followed in the situation faced F.2d at 714-15. Totten concluded setting defendants. After forth in detail stating, my opinion, they “In [defendant offi- the manner in defendants failed were deliberately cers] indifferent to Mr. approved procedures, to follow he stated emergency Heflin’s needs for care which in his this conduct demon- have could saved his life.” strated deliberate indifference to Heflin’s appeal, urged On defendant officers rever- “emergency need for care which could of the sal district denial of a court’s directed have testimony saved his life.” The mere- scientific, technical, skill, 7. Rule 702 expert by knowledge, states: “If experience, training, or specialized knowledge other education, will assist the trier may testify or thereto in the form of of fact to understand the or to deter- opinion an or otherwise.” issue, qualified a fact in a mine witness as an (3) fading to confirm negligent in was and the the witness’s view ly emphasized of open ...” 863 discharge valve was the seriousness failures. defendant’s of test, 1272. “will assist F.2d at of the generality the Given fact,” no find abuse we trier of [the the Green’s court excluded The district testimony. admitting this in concluding discretion testimony, proffered expert’s] added). as Green’s status was not based on that it (emphasis F.2d at the reasoned that expert. The court an finding that then, a supports also Heflin, “scientific, based on testimony was not did not err this case court in district the knowledge,” technical, specialized other Sheffey’s pre- eyewitnesses permitting the lay opinion of the rather on Green’s- but to answer conduct accident such, that as case driving reck- he was they facts believed whether jury a “assist the on fact would not disregard for human in extreme lessly and expert.” well as an they can decide as eyewitnesses’ Heflin, Just as life. emphasized their merely testimony here Sheffey’s er- Initially, jury had to determine

well-developed recollections ... Thus, even May duty. of Babcock’s appropriate scope behavior ratic in- testimony incorporated testi- expert’s] though regard, [the this Green’s In this jury on given to the helpful to be industry about mony on custom structions necessary rea the mens Sheffey had under Rule 702 whether have been admitted should murder, lay of second a conviction of a knowledge outside specialized as Rather, the legal a conclusion. not state did But once the juror’s experience. opinions testimony observation-based set out scope on the all of the evidence heard easy terms lay people expressed duty, qualified it was as as Babcock’s , ultimate non-lawyers to understand —-on whether Babcock to determine Green of fact. issue duty. proffered tes- Green’s breached of Babcock’s timony adequacy as to the if we that even contends opinions which consisted of performance given to the Govern find that the answers they jury because helpful not were not driving did questions on ment’s equally with- were matters that addressed conclusion, they nonetheless call for a jurors under- competence According to jury. unhelpful were decide, and were inadmissi- thus stand just good a as jury was Sheffey, the 701 and 702. Fed.R.Evid. ble under if to determine eyewitnesses position as the at 1272-73. recklessly in ex driving Sheffey was Therefore, human life. disregard for treme not believe that McGowan dictates We do nothing to opinions added eyewitnesses’ eyewitnesses’ answers to finding that the a We also find ability a decision. to make their believed whether argument unpersuasive. this hu- recklessly and key Indus., Inc., unhelpful. The distinction 863 man Cooper life In McGowan v. and those in facts of this case (6th Cir.1988), circuit estab- between F.2d lay opinion testi- is that here the lay expert McGowan whether its test for lished and, eyewitnesses who mony from actual came helpful to the testimony is witness Sheffey’s behavior immedi- clearly observed an ac- thus, involved McGowan admissible. accident, from instead of severely ately in- before plaintiffs were in which cident par- after the fact expert hired compressor explosion of jured after the way, in this case ty’s Put another case. by Harold Babcock. being reconstructed good position in as evaluate not an ex- proffered Plaintiffs lay wit- Sheffey’s state of mind were adequa- on the testified the. pert who would have jury did not have the nesses because the compres- performance on cy of Babcock’s up-close contemporaneous and same kind of particular, rebuilding project. sor (1) Sheffey’s driving. In such a situa- view of have testified Babcock expert “would eyewitnesses’ tion, cannot hold that present knowledgeable’ person we was ‘the most unhelpful. was See in this case ... compressor operations; respect to with

1429 Virgin Knight, manslaughter. Government Islands v. 989 earlier, As noted the district of (3d Cir.) 619, (holding eyewit F.2d that gave 630 court following instruction on the that, testify ness should have been allowed to distinction: opinion, firing gun defendant’s aof degree requires Second murder proof be- accidental; this was because “the witness’ yond a reasonable doubt of malice afore- gunshot that was accidental thought. may Recklessness constitute permitted

would have him to relate the facts aforethought malice where the defendant greater clarity, and hence would have acts disregard with extreme for human denied, jury”); U.S. -, aided the cert. life. 556, (1993). 114 S.Ct. 126 L.Ed.2d 457 Thus, where the defendant acts with reasons, then, disregard reckless

For these for human hold that life we which is nature, not of an properly court a may district an defendant admitted the Vitale, only Gilliland, be of given involuntary swers Ms. Mr. convicted man- slaughter. Mr. and Mrs. Leonardi on whether be lieved that driving recklessly Sheffey contends that this instruction does disregard and in extreme for human life.8 give not complete as an understand- Sheffey’s turn argu

We will now to other ing of what constitutes aforethought malice appeal. ments on proposed instruction. See Shef-

fey’s Brief, pp. 20-25.9 The Government III. by asserting counters the instruction given was and, an accurate statement law Sheffey additionally claims error, thus, was not court in failing adequately district erred instruct on the difference between This circuit high has set a standard n necessary the mens rea to sustain convictions reversal of grounds a conviction on the degree involuntary second murder and improper instructions. In United v. lous, reckless, 8. Even if this Court were to find in admit- error or probative wanton and more answers, ting Court believes that such aforethought, of malice approaches as it error would be harmless. See Fed.R.Crim.P. comparable mental state deliberation 52(a). below, As will be noted in this Lesina, (9th intent.” U.S. v. 833 F.2d 156 adequate case had more than from Cir.1987). aforethought "Malice ... embraces beyond which conclude a reasonable doubt intentionally state of mind with which one guilty degree of second act_” mur- wrongful commits a tine, U.S.v. Celes Cf. lay opinion testimony der—even without the dis- 457, (9th Cir.1975). 510 459 F.2d Malice fact, light above. cussed of this the Court aforethought be inferred from circum say any Sheffey's rights cannot substantial stances depraved which show a wanton were affected the admission of this evidence. spirit, a mind bent on evil mischief without Roston, regard consequences. to its See U.S.v. Sheffey's proposed instruction on afore- malice (9th Cir.1993); Celestine, 986 F.2d 1287 U.S. v. (unedited) thought read as follows: 457, (9th Cir.1975). 510 F.2d 459 killing "Malice connection with the crime you, jury, It is for to decide whether the is but another name for a certain condition of facts in this case warrant an inference of mal- mind, heart or man's and as no one can look aforethought. you ice If find that the defen- another, only way the heart or mind of into dant with “extreme acted indifference upon to decide its condition at the time of the life," value of human Model Penal Code facts," killing is to infer it from the and that is (1985), you may § 210.2 convict the defendant you, jury, presence to decide. "The of second murder. absence of this malice or mental condition If, however, you find that the defendant's boundary separates marks the two mental state shows a wanton or reckless disre manslaughter." crimes murder and Steven gard for life but U.S., human not of the extreme 313, 839, v. son 162 U.S. S.Ct. finding nature (1896). will of malice L.Ed. 980 "The between difference you may aforethought, only then convict displays depravity that recklessness which manslaughter. defendant of See U.S. v. Flem such extreme and wanton for human (4th Cir.1984), denied, ing, 739 F.2d 945 life as to cert. constitute 'malice' and that reckless 1193, 970, only manslaughter U.S. 105 S.Ct. 83 L.Ed.2d 973 ness amounts lies in Pardee, (1985); (4th quality U.S. v. 368 F.2d awareness of the risk.” U.S. Dixon, Cir.1966). (D.C.Cir.1969). 292-93 "[Djisregard App. for human life becomes more cal- 25-26. 1430 390, Cox, Cir.) (cita F.2d 392 (6th v. 509 ed States 1459, Clark, 1468 F.2d 988 — (D.C.Cir.1974)). de denied, —, Ninth Circuit omitted), U.S. cert.

tions (1993), including aforethought as “the we 105, L.Ed.2d 71 fined malice 126 114 S.Ct. intentionally which one stated; of mind with state justi wrongful act without jury commits in- review court must appellate An v. Cel United States fication or excuse.” to determine in order as a whole structions (9th Cir.1975). 457, estine, 459 jury 510 F.2d of they adequately inform the whether noted that panel further The Celestine provide a considerations the relevant from aforethought “may be inferred jury in reach- malice in law to aid the sound basis may ‘a wanton and which show reviewing court circumstances A ing its decision. instructions, on evil mis a mind bent only deprived spirit, if the judgment reverse a ” consequences.’ whole, confusing, regard mis- to its without chief viewed as a leading prejudicial. Id. Busacca, 863 F.2d v. States also United

See composite this Applying 27 F.3d at 206-07. Cir.1988) (“The (6th 433, trial court 435 it, case before the facts of the definition to formulating broad discretion ‘vested with stated: this Court its reversed unless charge not be and will its Milton, fired at least two unprovoked, ”) law.’ accurately to reflect the charge fails Despite car. Mil- into the victim’s shots omitted), de cert. (citation quoted cases only meant he ton’s statement that 1640, 1005, 104 nied, 109 S.Ct. 490 U.S. Beasley, actions we infer scare from (1989). 156 L.Ed.2d a risk of aware of that he must have been court’s instruc- that the district We believe injury. bodily Milton’s or death serious between the jury on the to the difference tion from a reasonable standard gross deviation necessary for second to convict mind of state requisite malice of care established involuntary manslaugh- degree murder aforethought to hold him accountable for proper- The instruction was not in error. ter second murder. jury Sheffey if demon- that ly informed the at 208. 27 F.3d life, he disregard for human strated degree mur- guilty second be found could jury instruc We believe otherwise, only of involun- der; guilty he adequately identified the in this case tions This is an accurate tary manslaughter.10 necessary a second of mens rea level the law. statement by stressing to the degree murder conviction Sheffey’s admitted recklessness jury that only a few down In a decision handed an extreme disre Milton, have demonstrated must 27 F.3d ago, United States months support such a convic denied, gard life Cir.1994), for human (6th U.S. cert. (1995), mirrors the standard -, tion. This instruction 130 L.Ed.2d 115 S.Ct. in Milton: aforethought set out malice for malice the first time defined Court for grossly de deviates from by adopting the definition When a defendant aforethought jury that a appeal. of care to such an extent standard veloped other courts aware that must have been “[mjalice could conclude he Eighth Circuit stated bodily or serious a serious risk death of conduct be established aforethought can be injury malice at wanton, then gross and a is ‘reckless and the instruction was to him. tributed Because standard from reasonable deviation of the law and was an accurate statement care, is warrant nature that of such misleading prejudicial way confusing, no aware inferring that defendant was ed in Sheffey, his convic bodily we will not overturn risk of or serious of a serious death ” Elk, was im grounds on the v. Black tion harm.’ See United Cir.1978) (8th properly instructed.11 (citing Unit given the instruction repeating point 11. asserts at this It is worth thorough as the one that was not guilty of at least involun- conceded that he was proposed of trial. The Govern- in the he middle tary manslaughter. out, however, points correctly ment IV. reasonable could conclude Sheffey that guilty of degree second murder. Shef- Sheffey’s argument appeal next on is that fey’s testimony that he did not intend to hurt there was insufficient evidence to his anybody May 22,1993, on is unavailing. Un- degree conviction for second murder. The fortunately for Sheffey, speak actions louder by stating Government counters words, than and the evidence of his conduct proofs example demonstrate textbook day fully supported jury’s verdict. driving in disregard reckless of hu- man life.

This circuit has stated numerous occa V. claiming sions that a insufficiency defendant Sheffey’s assignment next of error See, heavy of the evidence bears a burden. states that prejudiced he was by Assistant e.g., 1429, Wright, United States v. 16 F.3d United Attorney States alleged Cook’s emo (6th Cir.), denied, U.S. -, cert. tional outburst at sentencing hearing. his 2759, (1994). 114 S.Ct. 129 L.Ed.2d 874 We He claims that Mr. Cook should have recused “whether, must determine viewing after himself from sentencing hearing because light most favorable to the personal of his involvement in the case. As prosecution, any rational trier of fact could noted, previously argument was. raised have found the essential elements of the for the first on appeal; time the district court beyond crime a reasonable doubt.” Id. given was never an opportunity to consider Evans, (quoting United States v. 883 F.2d it. exceptional Unless circumstances are (6th 496, Cir.1989)). present, normally this court will not address elements second issues not raised for the first time in the § murder violation of 18 U.S.C. 1111 are: Barilow, district court. Foster v. (1) (2) the unlawful killing being; of a human (6th Cir.1993). (3) with malice aforethought; and within the special jurisdiction maritime or territorial Exceptional circumstances are nota beyond the United States. dispute It is bly lacking Sheffey here. does not claim that Sheffey justi killed Mr. Shackelford without the sentence that he received was inconsis fication in a United National Park. We Sentencing Guidelines, tent with the or that also find more than sufficient evidence in the the district swayed by court was Mr. Cook’s killing trial record that this was done with recounting personal losses he has suf the recklessness and extreme fered due is, then, to drunk drivers. There necessary human life finding for a of malice no evidence of record if that even we ordered aforethought. Sheffey legally intoxicat Mr. Cook removed from this case the result accident, ed at the time of and was also any would be different. under the prescription influence drug whose side effect of drowsiness have VI. been enhanced consumption. his alcohol vividly Witness after witness Sheffey’s testified as to argument, final also raised for consistently dangerous driving by appeal, Shef- presents first time on more trou- fey leading up They to the accident. bling issues. supporting pro- With affidavits precarious described in detail ex-wife, nature of vided to us from his sister Road, Little River present trial, road admit private who were at his and a knowing light ted to well. investigator, of this uneon- who looked into the matter after evidence, say trial, tradicted cannot we that no asserts im- required give requested The court Wright, is not 2 Charles A. & Federal Practice Proce- language requested, instructions in the (2d (footnotes exact ed.1982) § dure at 688-89 Indeed, they correctly even if state the law. omitted). collecting authorities Because the dis- usually preferable for the court to use its trict court delivered instruction which ade- language framing own instructions. It is quately governing set forth the law on malice enough adequately charge and correct- aforethought, by refusing Sheffey's it did not err ly requested covers the substance in- proposed that issue. instruction on structions. he relies was on which tend that the evidence pres- against him prejudiced properly newly discovered. during the trial courtroom in the ence anti-drunk- members four to five some when a crimi have held We wearing of whom driving groups, all of misconduct raises issues nal defendant reflecting their cause. buttons noticeable appeal, time on affecting jury for the first disconcerting conten- more Even prejudice prevail. to actual he must show his from tion, by the affidavits supported 865, Griffith, 17 F.3d v. United States See ex-wife, “even that these activists sister Cir.1994) (“[Wjhere (6th failure to hold 880 jurors” lunch with the far as to eat went so raised for the jury misconduct is hearing on trial. during his ‘must appeal, the time on defendant first facts in the record from demonstrate held, after omitted), circuit has At least one occurred.’”) (citation prejudice actual record, evidentiary reviewing an extensive denied, -, 115 S.Ct. U.S. rt. ce of activ in the courtroom presence (1994). 149, 89 United 130 L.Ed.2d Cf. signs insignia easily observable ists with (8th Sorenson, 701, 611 F.2d 702 charged is a defendant to the crimes hostile Cir.1979) jury mis (“[0]bjections on based for the reversal grounds is committing be raised for during the trial cannot conduct it undermines because of a conviction counsel did not appeal when the first time on right of and the of innocence presumption alleged miscon trial court apprise See his accusers. confront (“Ob the defendant to trial.”); Wright, supra, at 260 duct at (9th 828, 831-34 918 F.2d Risley, Norris v. concerning the jections based on misconduct Cir.1990) petition ha (reversing denial of time on for the first jury cannot be raised prisoner). state corpus Montana by beas A trial sensible rule. appeal.”). This is a Moreover, unau disputed be it cannot normally given opportu be court should by persons with third thorized conversations any possible prejudice to a de nity to cure de case that are jurors regarding it as during trial or close to as fendant if trial may provide grounds for new ciding Indeed, (emphasis Fed.R.Evid. possible. those conversa it can be established added) appears contemplate to a deliberative A. fact, tions, See Charles in occurred. allegations of process the trial court when 554, § Procedure Wright, Practice & Federal by providing are outside influence raised (2d Supp.). 1982 & 1994 at 249-50 ed. may testify question juror on “... brought to any outside influence whether that, however, Sheffey case, admits In this Pretty clearly, this any juror.” upon bear Norris, not he did unlike the defendant court should be anticipates that a trial Rule court’s attention bring to the district opportunity to con given take of the objections presence to the current influence. cerning allegations of outside possible and their in the courtroom activists Nonetheless, prejudice” rule in the “actual jurors contact with the improper luncheon defendant permits still a criminal this circuit during or in a Fed.R.Crim.P. the trial either appeal, on but argue improper influence to despite trial. This motion for a new fact, can, prejudice. only show if actual he on which the three affidavits fact that two of however, matter, we must note practical aAs support his claim of miscon- Sheffey relies to extremely to will be difficult that this burden only two involving duct the —and nothing of the trial if there is record meet lunched with allege the activists which to defendant can proceedings which a court ex-wife, sister jurors from his —are point. eomplained-of activities who observed Here, Sheffey meet his therefore, fails to bur Sheffey, had during the trial. showing prejudice. See United actual of the trial all of den at the time available him (6th 521, Pennell, 529-34 argu- States v. upon which he bases his the evidence Cir.1984) ruling Indeed, court’s (upholding district jury influence. of improper ment prejudice not actual im- did show not raise the defendants though Sheffey did even telephone anonymous third-party supple- caused argument until a proper influence jurors reviewing district after contacts to five appeal, he does not con- brief to this mental questioning of the entire court’s admitted the statements key four wit- impact impartiality), on their calls cert. nesses that was driving “recklessly denied, 469 U.S. 105 S.Ct. 83 and in for human life.” I (1985). respect L.Ed.2d 921 With to the will concede at outset allegation that the question activists had lunch with here turns on niceties that may jury, evidence, members of the there is no contrary seem to common sense. The affidavits, in the being even that conversations asked to decide a degree: Sheffey’s just about trial or related matters took bad how driving, and was jurors or that the place, actually enough even talked it bad impute actual malice as his directly activists, (when opposed simply motive absolutely there was no evi- being in the same vicinity restaurant or of dence of such in actuality). motive The wit- jurors.12 basis, therefore, We have no on nesses clearly position the best jury’s impartiality conclude that the explain just was, how bad his tampered by was with put activists at these even to it in a experience. framework of Similarly, lunches. accept while we as true This was succinctly done most emphati- allegations cally by Leonardi, that members of RID and Mrs. when she stated: “in present ETVRTF were at my the trial and driving career, did entire and even as [sic] buttons, anti-drunk-driving my wear we cannot as a passenger career in prior a car to say, developed that, without a more I record as have never seen like that.” Norris, in present that this constituted a The content of that is statement not ob- right of Sheffey’s violation to a fair trial or jected to, and it extremely was surely power- right to confront adverse witnesses.13 time, ful. At the finding same of second- simply do not jurors We know whether the requires murder beyond action well presence noticed the of these activists or the “gross negligence”; requires it such reckless- cause, and, nature of their they did, even if ness that one can Sheffey infer that acted such whether matters undermined their im “willfully,deliberately, and with malice afore- partiality. Because has not shown thought,” quote to the indictment. Because prejudice, actual and because we are unwill these terms legal import, are words of even if ing presume prejudice to such on the basis of reality they may convey nothing more submitted, affidavits reject we his final than driving “really that is awful”— “awful”— assignment of error. terrible,” “absolutely or jury required is grapple them as words of im- VII. port. reasons, foregoing then, For the AF- we opens Rule 704 conclusory the door to judgment FIRM the by of conviction entered opinions by declaring testimony that “is not Jordan, Hon. Leon Judge U.S. District objectionable because it embraces an ulti- Eastern District of Tennessee. mate issue to be by decided the trier of fact.” hand, On the other Rule 701 and the cases BOGGS, Judge, concurring Circuit part decided partially by under it close this door dissenting in part. limiting lay testimony to opinions those case, except I concur in all of its the court’s holding opinion Section in this II of the witness’ are “helpful” to testimony,” ^[1] “a clear understanding ^[2] “the determi- that the district court properly nation a fact in issue.” significant It is to note that the investigator's affidavits of report neither the nor her affidavit Sheffey's ex-wife conclusory sister are alleged even mention the luncheon contact. allegation nature as to their that the ate activists jurors. provided lunch with the No detail is reject 13. We do not mean to the rule announced wording the substantive of the two affidavits hand; rather, out of we Morris believe a more identical, indicating drafted fully developed presented factual record must be this, person. same contrast the affidavit directly before we can decide private investigator from the includes detailed presence bearing insignia whether of activists report which includes interviews with indirectly the activ- hostile to defendant criminal violates allegedly Importantly, ists who were at the trial. rights. that defendant’s trial constitutional Thus, jury appeared in the instructions. County Torres case of circuit’s Our Torres, I am reasoning in law and given at some Oakland, discusses the court conclusory opin- that the virtually on all to conclude unable me to be length, seems anything more than asked for do ions of the witnesses A witness our case. fours with I thus result to reach.”1 Torres been discrimi what Ms. “tell “Had opinion: testimony holding ori her national dissent from against because nated certainly one question was was admissible. This gin?” testimony, as helpful to understand sense state, in opinion goes on to court’s it, helpful to a summary of a succinct the error was page footnote at issue. ultimate determination —the factual very close Although is a this also harmless. so, found Even our court agree with this as I unable to question, am Rule 701 because helpful to the was not grounds for affirmance. an alternative “against admis protect designed correct, in the certainly states court is merely tell the would opinions which sion of footnote, more jury in case had that “the reach, in the somewhat what result to con- adequate evidence from which than earlier oath-helpers of an manner of the a reasonable doubt beyond clude Torres, (quoting Advi F.2d at day.” However, harm- murder. guilty” of 704). to Rule sory note Committee something more requires error standard less Torres, circuit, based The law in this subtracting offending testi- simply than a standard 701 does establish that Rule likely outcome the mony gauging the and simple a read- stringent than more somewhat Instead, testimony. we must of that absence understanding of the ing “clear of the words prospect acquittal of an gauge whether of a testimony” or “determination witness’ wrongful jury in of the hung a the absence issue,” imply. reason fact would sufficiently great say that testimony was stated, is, panel Torres stringency as the this testimony affected Shef- of the the admission legal con- “testimony conveying a that such Fed. fey’s rights. Under substantial unexpressed, [conveys] the witness’ clusion 52(a), prosecution bears R.Crim.P. erroneous, legal standards perhaps showing did not suffer burden jury.” Ibid. a result of the error. United prejudice as ques- in Torres noted The court Olano, -, -, 113 U.S. States v. language verbatim tracked almost tion (1993); 1778, 1770, 123 L.Ed.2d S.Ct. question does the applicable So statute. States, 342, 298 U.S. v. United McCandless held that the word in Torres here. The court 766, 347-48, 764, 80 L.Ed. 1205 56 S.Ct. meaning “specialized had “discrimination” (1936) (stating “well-settled erro- rule certainly though the word in the law” even substantial ruling relates to the neous which just meaning. In lay a common has un- ground reversal rights party is disregard “extreme way, in case same affirmatively appears from the whole it less of words that life” is a form for human Accord- prejudicial”). not record that was has speech, but also ordinary used of this ingly, I the admission believe I meaning. anything, If legal specialized affect substantial testimony did Sheffe/s everyday speech of in the venture that would rights. circuit, the term “discrimina- of this citizens inherently a close line- This case involves considerably greater fre- appears with tion” exercise, recog- drawing and our circuit has phrase “extreme quency than the weight against a prose- nized I note that the human life.” in the harmless identically is a crucial factor to all defendant phrased cutor Alt, analysis. v. United States used exact error eyewitnesses, and (6th Cir.1993) (failing find an life,” F.2d disregard for human phrase, “extreme fact, a certain conclusion. opinion, page led toward court’s at 6 of the 1. Footnote only height- certainty responses clarity no under- "had trouble states that the witnesses danger was affected put The wit- ens standing” to them. questions possibly is, however, submerged erroneous le- witnesses' irrelevant. confusion nesses' lack of gal impermissibly conclusions. was The issue is whether error harmless where evidence was less than

overwhelming). Sheffey’s driving was atro- and, admits, as he now

cious criminal. Nev-

ertheless, an higher culpability even level of necessary finding for a the crime murder,

involved was rather than man-

slaughter.2 question, On that the introduc- eyewitnesses

tion of from the intended, certainly taken,

almost as an on the conclusion the

asked to reach. This fact leads me to con- error,

clude that the I such it to believe

be, not harmless under Fed.R.Crim.P.

52(a). I therefore portion dissent as to this opinion.

of the court’s JONES, Similarly All

Jerome Others

Situated, Plaintiff-Appellant, GARY, INDIANA,

CITY OF

Defendant-Appellee.

No. 94-2673. Appeals,

United States Court of

Seventh Circuit.

Argued Nov. 1994.

Decided June sentence) 2. This 2A1.4.(a)(2) distinction leads to an § enormous in- (assigning USSG punishment. Compare § crease 2A1.2. involuntary USSG Base slaughter; level Offense of 14 for man- (assigning a Base Offense level comparable adjustments for second- would result murder, ultimately leading 10-year year.) in a sentence of about one

Case Details

Case Name: United States v. John C. Sheffey

Court Name: Court of Appeals for the Sixth Circuit

Date Published: Sep 20, 1995

Citation: 57 F.3d 1419

Docket Number: 93-6534

Court Abbreviation: 6th Cir.