*2 ALARCON, Before TANG and Circuit had been Yvonne Descheenie. *, District Judges, Judge. and TAYLOR residence Yvonne at Claw searching for times Mr. Claw several when struck TANG, Judge. Circuit con- rifle. Bowman was the head with a to six and sentenced victed of assault Bowman, Jr. was indicted Johnnie Lee released He had been prison. months in weapon with dangerous for assault with a the incident at two months before only to do harm in violation of bodily intent Descheenie residence. (1976) 113(c)(1948). U.S.C. §§ * designation. Taylor, Honorable Fred M. United States Dis- Idaho, Judge sitting trict the District
H05 The admission district court the time he is alleged to have grabbed relating of the evidence to this and assaulted Yvonne.
conviction was not an abuse of discretion. The conviction AFFIRMED. Evidence of crimes is admissible whenever relevant to an issue other than ALARCON, dissenting. Circuit Judge, *3 propensity. defendant’s criminal Fed. I respectfully dissent. v. Mehrman States 404(b); R.Evid. The district court’s give refusal to in- esh, 822, 689 F.2d 830 It was covering structions the factual defense the government’s contention that Bowman jury compels reversal. attacked Yvonne because that belief she responsible was for his earlier convic A clear understanding of the conflicting tion, thus characterizing the assault on versions of the facts presented by revenge. Although Yvonne an act of government and the defense is essential to prior victim the case was not involved prejudicial assess the impact of the district here, there was a sufficient factual relation ruling. court’s erroneous ship between the two incidents to render the prior conviction relevant to the issue of I. motive for the assault Summary Government’s Evi- A. potential Yvonne. The unfair prejudice dence was clearly outweighed by this instance the probative value of the evidence. 13, 1981, a.m., On at 10:30 Yvonne Descheenie was standing the out- persuaded Neither are we that the house near her mother’s home when she district court’s decision not to re Bowman, saw Johnnie Lee Jr. approaching quested instructions on unconsciousness and the door. She remained inside because she self-defense was reversible error. It is well was afraid of Bowman. Bowman asked her established that a not entitled to open door. Ms. Descheenie did noth- to a instruction a defense ing and silent. grabbed remained Bowman there unless is some evidence before the door and forced it open breaking the Collom, it. United States v. support to latch. Bowman told her going he was cert. de (9th Cir.1979), F.2d gotten take her she hostage had nied, 100 S.Ct. U.S. a him into lot of trouble. Ms. Descheenie (1980). L.Ed.2d 278 It requires more than a to go refused with Bowman then him. mere or plea speculation if anything grabbed her push and tried to her outside. it occurred must have occurred while uncon Ms. Descheenie held a board next onto or in scious self defense. The dis record the door. Bowman then removed a knife closes no to provide evidence a factual foun pocket from his and held it first in his left dation for either unconsciousness or self placed hand and then in his right hand. He A defense. review of the evidence on self the knife blade Ms. Descheenie’s throat. or requires defense unconsciousness no as struggled began She scream. sessment of the credibility any witness at man rubbed knife across her throat. testimony trial. There is no that defendant alleged screams, do loss of anything Aroused Ms. Descheenie’s her Further, mother, sister, grandmother consciousness. defendant’s came of self defense is her unsupportable they approached, absent rescue. As Bowman of any admission defensive actions taken told Ms. Descheenie’s that he mother Thus, him in fear of his kill At safety. going daughter. the district her this time requested away court properly pushed denied defendant’s Ms. Descheenie the knife from throat, jury instructions on self defense and uncon cutting finger process. sciousness. The record is fell to the Ms. Descheenie’s simply ground. devoid She hit a suggesting Mary that Bowman act mother Bowman with board. ed in hit with ham- was unconscious Jane Descheenie Bowman a deadly weapon was com- assault with with such force mer above ear indicates mitted, the Government’s case fell to the heard his bones crack. completed by that was to and unconscious for ground. He be appeared victim’s the asserted saw a knife time Mary Descheenie time. Jane to her aid. during af- came in each of Bowman’s hands fray. added). pp. (emphasis RT: Vol. II. 148-149 superficial Yvonne Descheenie received III. eight (8) on her neck which laceration Analysis A. also had a laceration long. centimeters She finger. on her index presented at trial was The evidence points. conflict on several critical Testimony the Defense Summary B. as- testified that an government’s witnesses *4 in the weapon began a Bowman, deadly sault with testified Lee Jr. Johnnie placed a knife when Bowman outhouse he walked from his on Later, throat. against the victim’s home resident to cousin’s to the Descheenie her throat and man moved the knife across Descheenie, his see his son and Yvonne com- he to kill Yvonne going told her mother he arrived he saw his mon-law wife. When Descheenie. He walking wife towards the outhouse. “between a approached her when his wife was some- Bowman testified way began to a there.” fourth half She out- the residence and the between his arms
yelling
placed
“Mom”. Bowman
her
placed
he
his arms around
house when
then
around her to calm her. He
saw
have a
in his
to calm her. He did not
knife
with
approach
Yvonne Descheenie’s mother
.
anyone
and did not assault
possession
in
hands.
struck her
a board
She
unconsciousness.
being pounded
to
into
hit Bowman. Bowman
daughter
then
quite
is
Thus,
theory
the
of the defense
anything
has no
of
that occurred
memory
place
knife
clear.
assault with a
took
No
he
consciousness
regained
thereafter until
If
time Bowman was conscious.
during the
hospital. Bowman received
skull
it
anyone,
assaulted
occurred
right
deaf
his
ear as
fracture
is now
in
a re-
and as
he was rendered unconscious
of
he
He did
the result
the blows
received.
at-
protect
action to
himself from
flexive
any
have a
time that he was at
knife
This de-
family.
tack from the Descheenie
premises.
the Descheenie
by
supported
fense
jury
the
which the
testimony and
inferences
II.
from
might
testimony presented
draw
the
sides. The evidence is uneontra-
by both
A. Refusal
to Instruct on
Defense
beaten into uncon-
dicted that Bowman was
Theory
as to
and suffers from amnesia
sciousness
The district court refused to
instruc-
which
any events
followed the blows
the
of
tions on
defense theories
uncon-
received to
head.
refusing
sciousness and self-defense.
In
A
in
case is entitled
defendant
a criminal
these
the
court stated:
instructions
district
any thing of de-
jury
to have the
consider
rejecting
The reason the Court
is
the
law, and
by
is
the
supported
fense which
instruction and the uncon-
evidence,
in
which has some foundation
the
the
totality
scious instruction is
in
however,
eyes
weak in the
the district
has
by
the circumstances it
been adduced
Bessesen,
F.2d
court.
States v.
United
case
the
in this
the
presented
assault,
if
which the defendant
any,
majority
The
relies on United
any
subse-
States
was indicted occurred
Collom,
(9th Cir.1979)
sup
F.2d 624
of the
where the
quent activity
court
If,
that the district
port
aid.
un-
of its conclusion
asserted victim came
on
it,
rejected Bowman’s instructions
correctly
as the
views
der the evidence
Court
complete prior
unconsciousness and self-defense. A care
sault was
to the victim’s
rescue,
reading
ful
the issue before this court in
“under the evidence as the court
it,”
factu
views
the
improperly
Collom discloses that that decision is
district court
de-
Collom,
the
nied
the defendant the
ally distinguishable.
district
have the
decide who
jury
spoke
sub
the truth as to when
jury
court read
instruction
occurred,
or if
this
whether the de-
by
mitted
defendant.
instruc
knife,
fendant was armed with a
and if the
jury
jury
was told that
could
law would excuse his conduct if
jury
perpetrator
consider the
of the actual
sanity
testimony,
believed his
determining
per
whether a
crime
son
of aiding
abetting
prin
accused
importance
instructing
jury
cipal
guilty of a crime. After partial
applicable
law
to the defense
the jury
deliberations
advised the court that
by
ago
an accused was well stated
long
was confused
the instruction. The
States,
(D.C.
Williams v.
F.2d 21
court,
objection,
district
jury
over
told the
Cir.1942).
disregard
the instruction. We held that
almost,
not,
It
important
if
court did
district
not commit error
to have a
instructed on
withdrawing the instruction
“Ste
because
applicable
law
his particular
case
phen’s novel
about the effect
law,
judge, who knows the
as to
sanity
brother’s
on his own criminal intent
peers.
have a
of his
The latter is
adequately
covered
other instruc
safeguard
our
supposed
institution of
*5
tions.”
Id. at The district court thus duty its the evidence nored consider rejecting Bowman’s instructions on presented Bowman that no assault oc self-defense, unconsciousness and the dis- family to the time the curred came trict court committed two fatal errors. Ms. Descheenie'sa id. First. The district court the evi- weighed dence, govern- and determined that jy ment’s witnesses concerning told truth Conclusion the use of knife and that an assault court, occurred time the as- in violation of The district trial, resolved conflicts stating saulted Bowman. the as- man’s the defendant against in the evidence an with a committed assault
whether he unconsciously
knife, and, if he acted
self-defense. acquit- was entitled to to raise a
tal if he was able reasonable when unconscious
doubt that or that he acted in was committed
self-defense. on the
The failure instruct defense
only legal factual Bowman a government’s case denied
fair trial. for a
I reverse and remand new would in-
trial free of these fatal constitutional
firmities. AHLSWEDE, County
Herbert Clark Defender,
Deputy relation of Public Deutscher, Petitioner-Appellant,
Henry *6 WOLFF, Director, Department of
Charles
Prisons, Superin- Lippold, and Robert Prison,
tendent, Security Maximum Re-
spondents-Appellees.
No. 82-5831. of Appeals,
United States Court
Ninth Circuit.
Argued and 1983. Sept. Submitted
Decided Nov.