UNITED STATES OF AMERICA, Plaintiff - Appellee, v. SHANNON JAMES KEPLER, Defendant - Appellant.
No. 22-5006
United States Court of Appeals for the Tenth Circuit
July 25, 2023
PUBLISH. Appeal from the United States District Court for the Northern District of Oklahoma (D.C. No. 4:20-CR-00276-GKF-1). FILED July 25, 2023. Christopher M. Wolpert, Clerk of Court.
Leena Alam, Assistant United States Attorney (Clinton J. Johnson, United States Attorney with her on the brief), Tulsa, Oklahoma, for the Plaintiff - Appellee.
Before HARTZ, SEYMOUR, and MATHESON, Circuit Judges.
MATHESON, Circuit Judge.
Defendant-Appellant Shannon Kepler appeals his conviction for causing death by discharging a firearm during a crime of violence in violation of
A. Factual History1
Mr. Kepler and his wife Gina Kepler both worked as officers for the Tulsa Police Department. During the summer of 2014, the Keplers began to experience conflict with their 18-year-old adopted daughter, Lisa.2 Lisa was acting out, fighting with their other children, and engaging in other rebellious behavior. Mr. Kepler gained access to Lisa‘s Facebook account to monitor her activity. Eventually, the Keplers kicked Lisa out of their home and dropped her off at a homeless shelter.
Mr. Kepler continued to monitor Lisa‘s Facebook account and discovered she was dating a man named Jeremey Lake. Using police department resources, Mr. Kepler obtained Mr. Lake‘s address, phone number, and physical description.
On the same day he obtained this information, Mr. Kepler armed himself with his personal revolver and drove his SUV to Mr. Lake‘s address. He spotted Lisa and Mr. Lake walking together near the residence. Mr. Kepler stopped the SUV in the middle of the road, rolled down the window, and called out to Lisa. Lisa refused to talk to him and walked away. Mr. Kepler exited the vehicle to follow her.
At that point, Mr. Lake approached Mr. Kepler to introduce himself and shake his hand. Mr. Kepler drew his revolver. Mr. Lake tried to run away. Mr. Kepler
Mr. Kepler then fled. Witnesses called 911. Paramedics arrived and declared Mr. Lake deceased. Later that night, Mr. Kepler turned himself in to the Tulsa Police Department. The same evening, witnesses to the shooting—including Lisa—were transported from the crime scene to the police station and interviewed by officers.
Mr. Kepler later claimed that Mr. Lake had a “shiny semiautomatic handgun” that he pointed at Mr. Kepler. ROA, Vol. I at 1240. But the evidence at trial showed that Mr. Lake had no gun: (1) no witness at the scene saw Mr. Lake holding a weapon, (2) no witness had ever seen Mr. Lake with a handgun, (3) Mr. Lake did not own a “shiny semiautomatic handgun,” and (4) no weapon of any sort was discovered at the scene. See id. at 474, 558, 567-68, 573, 626-27, 636-37, 643-44, 646, 749, 774, 792-93, 813, 826, 925, 928-29, 939.
A few days after Mr. Lake‘s death, a janitor found a chrome pistol inside a garbage can in a Tulsa Police Department interview room. He could not remember the last time the garbage can had been emptied, so he did not know when the pistol might have been deposited there. On the night of Mr. Lake‘s death, only Lisa had been interviewed in that room. She had been transported to the police station directly from the scene.
This appeal requires analysis of two sets of statutes. We provide an overview of them here to facilitate understanding the district court proceedings.
1. Federal Murder Statute
The federal murder statute,
Murder is the unlawful killing of a human being with malice aforethought. Every murder perpetrated by poison, lying in wait, or any other kind of willful, deliberate, malicious, and premeditated killing; or committed in the perpetration of, or attempt to perpetrate, any arson, escape, murder, kidnapping, treason, espionage, sabotage, aggravated sexual abuse or sexual abuse, child abuse, burglary, or robbery; or perpetrated as part of a pattern or practice of assault or torture against a child or children; or perpetrated from a premeditated design unlawfully and maliciously to effect the death of any human being other than him who is killed, is murder in the first degree. Any other murder is murder in the second degree.
Thus, second-degree murder is the “killing of a human being with malice aforethought,” but without the specific circumstances required for first-degree murder.
Section 1111(a) does not define “malice.” Courts use common law legal principles to derive its meaning. See United States v. Serawop, 410 F.3d 656, 662 (10th Cir. 2005). This circuit has defined “malice,” “for purposes of second degree murder, [to] require[] either: (1) general intent to kill, or (2) intent to do serious
We refer to the latter two categories as “depraved-heart murder” and “second-degree felony murder.” We also refer to felonies that are not listed in the first-degree murder provision as “non-enumerated felonies.”
2. Title 18 U.S.C. §§ 924(j)(1) and 924(c)
Title
Section 924(j)(1) cross-references § 924(c). Section
C. Procedural History
Mr. Kepler was initially charged with murder in Oklahoma state court. ROA, Vol. I at 102-03. A jury convicted him of “manslaughter in the first degree – heat of passion.” Id.6 He appealed. While the appeal was pending, the Supreme Court decided McGirt v. Oklahoma, 140 S. Ct. 2452 (2020), which held that Congress had not disestablished the Muscogee (Creek) Reservation. Because Mr. Kepler was a Creek tribal member at the time of the crime, ROA, Vol. I at 1073, and because, under McGirt, his crime occurred on the Muscogee (Creek) Reservation, id. at 304,
A federal grand jury indicted Mr. Kepler for Count 1 - first-degree murder in Indian country7 in violation of
At trial, Mr. Kepler admitted he shot Mr. Lake. Id. at 1276-80. He did not contend that he acted out of anger, provocation, or passion. Id. Instead, he said he responded in self-defense to Mr. Lake‘s threatening him with a chrome pistol. Id. at 1276-82. He entered into evidence the pistol discovered in the trashcan and suggested that one of the witnesses took the pistol from Mr. Lake‘s body and smuggled it into the police station. See, e.g., id. at 1365-66.
Mr. Kepler moved for a judgment of acquittal under
II. DISCUSSION
On appeal, Mr. Kepler argues:
Second-degree murder is not a “crime of violence” under 18 U.S.C. § 924(c)(3)(A) and thus is not a predicate offense for his§ 924(j)(1) conviction;- The district court plainly erred in instructing the jury on the malice element of first- and second-degree murder;
- The Government‘s attorneys committed reversible prosecutorial misconduct at various points in the trial; and
- His conviction should be reversed based on cumulative error.
We reject these arguments and affirm.
A. Second-Degree Murder Is a “Crime of Violence” Under § 924(c)(3)(A)
Mr. Kepler appeals his conviction under
1. Legal Background
a. Malice
As noted above, malice is the mens rea element for second-degree murder. This court has said that it “requires either: (1) general intent to kill, or (2) intent to do serious bodily injury; (3) depraved heart recklessness, or (4) a killing in the commission of a felony that is not among those specifically listed in the first degree murder statute.” Visinaiz, 428 F.3d at 1307.
Mr. Kepler contends that the third and fourth types of second-degree murder—depraved-heart murder and second-degree felony murder—are not crimes of violence under
The following provides additional background on the mental states required to commit depraved-heart murder and second-degree felony murder.
i. Depraved-heart murder
Second-degree murder “is a general intent crime,” meaning the defendant need not act with a specific intent to kill the victim. See United States v. Wood, 207 F.3d 1222, 1228 (10th Cir. 2000). For “depraved-heart” malice, a jury may find general intent if the defendant‘s conduct was so “reckless and wanton” that the jury “is warranted in inferring that [the] defendant was aware of a serious risk of death or serious bodily harm.” Id. (quotations omitted). “Second-degree murder involves reckless and wanton disregard for human life that is extreme in nature.” Id. at 1229.10
ii. Second-degree felony murder
Our cases have also explained how the mens rea requirements for first-degree and second-degree felony murder differ. United States v. Chanthadara, 230 F.3d 1237, 1258 (10th Cir. 2000). For first-degree felony murder, “malice aforethought is proved by commission of the [separate enumerated] felony” listed in
b. Section 924(c)(3)(A) “crime of violence” and the categorical approach
We must determine whether federal second-degree murder is a “crime of violence” under
For this analysis, we “presume that an offender‘s conviction rested upon nothing more than the least of the acts criminalized” by the statute defining the putative crime of violence, and then “determine whether even those acts are encompassed by
Thus, federal second-degree murder is a “crime of violence” only if the conduct underlying every federal second-degree murder involves “the use, attempted use, or threatened use of physical force against the person or property of another.”
| Federal Second-Degree Murder | Crime of Violence |
|---|---|
| “[U]nlawful killing of a human being with malice aforethought,” which is: “(1) general intent to kill, or (2) intent to do serious bodily injury; (3) depraved heart recklessness, or (4) a killing in the commission of a felony that is not among those specifically listed in the first degree murder statute.” | A “crime of violence” is “an offense that is a felony and [] has as an element the use, attempted use, or threatened use of physical force against the person or property of another.” |
c. Borden v. United States
The text of
Both the plurality and concurrence interpret the
In Voisine, Justice Thomas presented a scenario in which “[a] person throws a plate in anger against the wall near where his wife is standing,” and “[t]he plate shatters, and a shard injures her.” 579 U.S. at 705 (Thomas, J., dissenting). According to Justice Thomas, even though the husband “did not intend to direct that force at” his wife, “[t]he Angry Plate Thrower . . . intentionally unleashed physical force” and therefore committed an intentional act designed to cause harm. Id.
A person thus can satisfy Justice Thomas‘s view of “use of physical force” without directing his conduct at another person, but this would not satisfy the plurality‘s interpretation of “against.” Because Justice Thomas‘s reading of
Every court to address the application of Borden in depraved-heart murder cases has reached the same conclusion. For example, in United States v. Begay, 33 F.4th 1081, 1093 (9th Cir. 2022), the Ninth Circuit cited the plurality as controlling. Id. at 1093. The dissent agreed, explaining that “the plurality reasons that the phrase ‘use of force’ must be modified by the phrase ‘against another’ in order to require that the perpetrator consciously ‘direct his action at, or target, another individual,‘” whereas Justice Thomas focused on the phrase “use of physical force” without otherwise narrowing it. Id. at 1100 n.2 (Ikuta, J., dissenting in part). See also United States v. Manley, 52 F.4th 143, 147-48 (4th Cir. 2022) (applying the Borden plurality‘s reasoning); Alvarado-Linares v. United States, 44 F.4th 1334, 1344 (11th Cir. 2022) (same); United States v. Harrison, 54 F.4th 884, 890 (6th Cir. 2022) (same).
The plurality focused on § 924(e)‘s words “against the person or property of another,” particularly “against.” Id. It said that to use force “against” another person “demands that the perpetrator direct his action at, or target, another individual,” id., and “[r]eckless conduct is not aimed in that prescribed manner.” Id. In support, the plurality noted that “against another” modifies “use of physical force.” Id. at 1826.
To show how a “knowing” mens rea satisfies “against the person of another” in § 924(e) and a “reckless” mens rea does not, the plurality contrasted two hypothetical scenarios. In the first, a “getaway driver sees a pedestrian in his path
In a footnote, the Borden plurality recognized that some criminal statutes require mental states comparable to, but more culpable than, ordinary recklessness, such as “depraved heart” or “extreme recklessness.” Id. at 1825 n.4. The plurality said its holding about reckless conduct did not address whether such statutes qualify as crimes of violence under the elements clause. Id.; see also id. at 1856 n.21 (Kavanaugh, J., dissenting) (noting that the plurality opinion has no impact on whether depraved-heart murder is a crime of violence).
2. Application
This appeal concerns whether second-degree murder is a crime of violence, specifically whether the malice element of second-degree murder satisfies the crime of violence definition of
Mr. Kepler contends that second-degree murder is not a crime of violence under
i. Section 924(c)(3)(A), Borden, and “against the person of another”
We hold that depraved-heart second-degree murder is a crime of violence under
Mr. Kepler presents two arguments.
First, he contends that depraved-heart recklessness does not satisfy the “against” requirement of
Second, Mr. Kepler asserts that depraved-heart murder does not satisfy the “person of another” requirement of
We develop these points further below.
Mr. Kepler‘s argument that depraved-heart second-degree murder is not a crime of violence because “against” in
Malice is the mens rea element of second-degree murder, and depraved-heart recklessness is one way to prove malice. The Borden plurality said that “against” in
Unlike reckless conduct, depraved-heart reckless conduct meets the Borden plurality‘s understanding of the word “against“—conduct “direct[ed]” or “aimed” toward another person. Id. at 1825. This is so because to kill with a “depraved heart,” a defendant must act with “a gross deviation from a reasonable standard of care,” and be “aware of a serious risk of death or serious bodily harm” to another. Serawop, 410 F.3d at 663 n.4 (quotations omitted). A depraved-heart murderer must consciously use deadly force “against” someone.
Under the Borden plurality‘s scenarios, the knowing getaway driver directed or aimed his conduct at another; the reckless commuter driver did not. A depraved-heart driver would fall somewhere in between. Under our definition of depraved-heart recklessness, he would have consciously “use[d] force against the person . . . of
As another example, a depraved-heart murderer who fires randomly into a crowd might not intend to kill any specific person—and might not be aware of which person is likely to be hit—but the conduct is “aimed” or “directed” at another. In United States v. Begay, 33 F.4th 1081 (9th Cir. 2022) (en banc) (quotations omitted), cert. denied, 143 S. Ct. 340 (2022), the Ninth Circuit reinforced this point, stating that depraved-heart “murder does not require conduct intended to harm, nor that a defendant target his conduct at any particular individual, but . . . the conduct is fairly characterized as extreme and necessarily oppositional because a defendant certainly must be aware that there are potential victims before he can act with indifference toward them.” Id. at 1095.
The foregoing highlights the differences among mens reas. A “knowing” mens rea requires the perpetrator to be “practically certain” that his conduct will harm a
We conclude that depraved-heart second-degree murder requires the perpetrator to “aim” or “direct” conduct at a person, thus satisfying the Borden plurality‘s requirement that conduct be “against” another.
2) “Person of another”
Mr. Kepler argues that depraved-heart second-degree murder is not a crime of violence because “person of another” in
First, the Borden plurality identified only “against” in
Second, even if
Other courts of appeals have held that a statutory reference to the person of another does not require the defendant to have a specific other person in mind when committing the crime. For example, in United States v. Linehan, 835 F. Appx 914 (9th Cir. 2020) (unpublished), the Ninth Circuit considered
When Congress has intended for a defendant to have a specific victim in mind, it has said so. See, e.g.,
In short, Mr. Keplers arguments fail because (1) even if person of another means specific person, it concerns actus reus, not mens rea, and thus is not a crime of violence requirement; and (2) even if person of another were a mens rea requirement, it does not refer to a specific victim, so depraved-heart recklessness
* * * *
The elements clause of
ii. Out-of-circuit support
In reaching this conclusion, we join every other court of appeals to have considered this issue. See Begay, 33 F.4th at 1093-96 (because depraved-heart recklessness requires extreme indifference toward human life, it is oppositional in the manner described in Borden); Janis v. United States, --- F.4th ----, 2023 WL 4540528, at *4-6 (8th Cir. July 14, 2023) (holding that the extreme recklessness standard required by depraved-heart murder is close to knowledge and far from ordinary recklessness, and necessarily denotes the oppositional conduct that the force clause requires); United States v. Manley, 52 F.4th 143, 151 (4th Cir. 2022) (extreme recklessness necessarily requires conduct that uses physical force against another); Alvarado-Linares v. United States, 44 F.4th 1334, 1344 (11th Cir. 2022)
In Begay, the Ninth Circuit understood depraved-heart murder to require depravity and such extreme and wanton disregard for human life as to constitute malice. . . . 33 F.4th at 1094 (quotations omitted). It recognized that [s]econd degree murder does not require . . . that a defendant target his conduct at any particular individual. Id. at 1095. It reasoned that depraved-heart murder requires finding that the defendant acted with extreme indifference, and that the indifference was toward human life, meaning the defendant must have be[en] aware that there are potential victims before he can act with indifference toward them. Id. at 1094-95 (quotations omitted). Thus, a depraved-heart murderer must have actively employed force (i.e., used force) against the person of another. Id. at 1095 (quotations and alterations omitted); see also Baez-Martinez, 950 F.3d at 127 (depraved-heart recklessness requires actions that result in a much higher probability—a practical certainty—that injury to another will result, and so
iii. Drunk-driving cases
Mr. Kepler contends that depraved-heart second-degree murder is broader than
(1) In United States v. Tan, 254 F.3d 1204 (10th Cir. 2001), the defendant drove
(2) In United States v. Leonard, 439 F.3d 648 (10th Cir. 2006), the defendant—who had not held a valid drivers license for several years—was high on alcohol, Xanax, Valium, Soma, and marijuana when he swerved into another lane, caused another car to swap lanes to avoid him, and swerved back into a head-on collision with the other car. Id. at 649-50. Mr. Leonard was charged with second-degree murder, but the jury found him guilty of the lesser-included offense of involuntary manslaughter. Id. at 650. On appeal, he argued only that his record of driving-related citations was not relevant and improperly admitted. Id. We disagreed, explaining that [c]itations for driving with a suspended license, like citations for drunk driving, convey to the malefactor societys considered view that the cited conduct is dangerous. Id. at 651. Leonard fails to help Mr. Kepler because the defendant was acquitted of second-degree murder. As in Tan, the appellant could not have made a sufficiency-of-the-evidence challenge to depraved-heart murder.
(4) In United States v. Merritt, 961 F.3d 1105 (10th Cir. 2020), the defendant was prosecuted for second-degree depraved-heart murder after driving under the influence in the wrong lane of a highway and causing a fatal crash. Id. at 1108. On appeal, he argued only that the district court erred in admitting evidence of his other drunk-driving incidents. He did not challenge the sufficiency of the evidence or argue that his conduct did not satisfy the depraved-heart standard. Id. at 1111-17. We said the admission of a separate drunk-driving incident was harmless error because the remaining evidence was overwhelming: (1) the defendant had previously driven drunk in a reckless fashion; (2) he had alcohol in his car; (3) his blood alcohol content was three times the legal limit; and (4) his car was almost entirely in the wrong lane when the vehicles collided. Id. at 1118. We did not address whether drunk driving is sufficient to prove depraved-heart murder. See Janis, 2023 WL 4540528, at *6 (In Merritt, [t]he Tenth Circuit emphasized the defendants special knowledge of just how risky his conduct was.)
Mr. Kepler notes some of these cases said that evidence of driving under the influence or of having prior drunk driving citations is admissible to show depraved-heart recklessness. Aplt. Br. at 16. But he mistakes relevant evidence for sufficient evidence. In re DePuy Orthopaedics, Inc., Pinnacle Hip Implant Prod. Liab. Litig., 888 F.3d 753, 775 (5th Cir. 2018) (Relevance, however, does not imply sufficiency.). Drunk driving may relate to a defendants state of mind, but none of Mr. Keplers cases holds that drunk driving is sufficient to prove the mens rea of depraved heart recklessness.
iv. United States v. Taylor (2022)
The Supreme Court recently considered a
Taylor addressed whether attempted Hobbs Act robbery is a crime of violence under
The government argued that threatened in
Taylor does not affect our analysis. Unlike Borden, it focused on the actus reus requirements of
Other courts understand Taylor similarly. The Eleventh Circuit recently rejected a Taylor-based argument that Georgia attempted murder does not satisfy
The Taylor opinion thus used the phrase specific persons to rebut the governments argument that
* * * *
In sum, we conclude that depraved-heart second-degree murder is a crime of violence under
In Borden, the plurality interpreted against to embody a mens rea element and to mean conduct aimed or targeted at another. Id. at 1824. It concluded that recklessness does not always require proof that conduct was aimed at another. Id. at 1825. By contrast, it said use of force with knowledge requires proof of conduct aimed at another. Id. at 1830. The plurality noted that depraved-heart recklessness falls in between recklessness and knowledge. Id. at 1825 n.4. It declined to say whether an offense requiring proof of the use of force with depraved-heart recklessness may be a crime of violence. Id.
Our analysis concludes that use of force with depraved-heart recklessness must be aimed at or against . . . another. It might not be aimed at a specific person, but as long as force is targeted at someone, the depraved-heart offense is a crime of violence. The
b. Second-degree felony murder
Mr. Kepler contends that second-degree felony murder is not categorically a crime of violence. He claims that its requirement of malice can be satisfied merely by the commission of a non-enumerated felony, and because the felony may not require conscious use of force against another, second-degree murder cannot be a crime of violence under
For first-degree felony murder, malice [] is proved by commission of the [enumerated] felony, so there is no actual intent requirement with respect to the homicide. Chanthadara, 230 F.3d at 1258. But, in a case where a defendant has committed a felony that is not enumerated in the federal murder statute, second-degree felony murder requires proof of malice with respect to the homicide. Id. In United States v. Pearson, 203 F.3d 1243 (10th Cir. 2000), in which the defendant accidentally killed a victim during a robbery, we said the commission of the robbery was not the type of constructive malice aforethought required to prove second degree murder because there was no malice tied to the homicide itself. Id. at 1271.20
Similarly, in United States v. Barrett, 797 F.3d 1207 (10th Cir. 2015), we explained that second-degree murder is not a lesser-included offense of [first-degree] felony murder because second-degree murder requires proof that [the] defendant acted with malice aforethought with respect to the killing, while first-degree felony murder requires the commission of an enumerated felony with the requisite mens rea for the underlying offense. Id. at 1221-22 (quotations omitted); accord Chanthadara, 230 F.3d at 1259 ([S]econd-degree murder under federal law requires proof of malice towards the homicide whereas [first-degree] felony murder does not.).
When the defendant has killed a human being during the commission of a non-enumerated felony, our cases thus hold that the prosecution must prove the defendant committed homicide with malice to establish second-degree murder. In effect, the
General intent to kill and intent to inflict serious bodily injury both require conscious deployment of force. Both require the perpetrator to direct conduct at the victim, thus satisfying the Borden plurality and
B. The District Courts Malice Instruction Was Not Plainly Erroneous
Mr. Kepler claims the district court plainly erred because it did not instruct the jury that malice requires the absence of justification, excuse, or mitigation. Aplt. Br. at 21-22. Because Mr. Kepler has not shown plain error, we affirm.
1. Additional Procedural Background
For Count 2, the
At trial, Mr. Kepler asserted that he shot Mr. Lake in self-defense, claiming that Mr. Lake drew a chrome pistol similar to the one later found in the police station. ROA, Vol. I at 1280. Mr. Kepler did not acknowledge that he might have been wrong about Mr. Lakes possession of this weapon. He agreed that he was 100 percent certain[] he saw Mr. Lake holding a shiny semiautomatic handgun. Id. at 1280-81. When asked, Its not like you made some sort of mistake; youre telling us you saw it?, Mr. Kepler responded, Im not mistaken. Id. at 1281. Mr. Kepler also stated that he was calm and not emotionally disturbed at the time. Id. at 1280 (Q: This is not a case where youre alleging that you lost your cool; correct? A: Correct.).
After the close of evidence, the district court instructed the jury on the elements of second-degree murder, and defined malice as follows: To kill with malice aforethought means either to kill another person deliberately and intentionally, or to act with callous and wanton disregard for human life. ROA, Vol. I at 250. This instruction matches the definition of malice in the Tenth Circuit pattern jury instruction on second-degree murder. See Tenth Circuit Criminal Pattern Jury Instruction 2.53. Mr. Kepler did not propose an alternative instruction defining malice, ROA, Vol. I at 127-31, nor did he object to the instruction the district court delivered. Id. at 1327-32. He did not propose an instruction on imperfect self-
2. Plain Error Review
We review a district courts decision to give a particular jury instruction for abuse of discretion, and we review the instructions as a whole de novo to determine whether they accurately informed the jury of the governing law. United States v. Toledo, 739 F.3d 562, 567 (10th Cir. 2014). But because Mr. Kepler did not object to the district courts malice instruction, we review this argument for plain error. United States v. Mullins, 613 F.3d 1273, 1283 (10th Cir. 2010).
Under plain error review, the appellant must show the district court committed (1) error (2) that is clear or obvious under current law, and which both (3) affected [his] substantial rights and (4) undermined the fairness, integrity, or public reputation of judicial proceedings. Id.
We focus here on the second element. In general, for an error to be [clear or obvious and] contrary to well-settled law, either the Supreme Court or this court must have addressed the issue. United States v. DeChristopher, 695 F.3d 1082, 1091 (10th Cir. 2012) (quotations omitted). A courts use of language from our pattern jury instructions weighs against a finding of plain error. See United States v. Ramos-Arenas, 596 F.3d 783, 786-87 (10th Cir. 2010) (looking to the pattern jury
3. Legal Background
A defendant may negate the malice element of murder by showing he had justification, excuse, or mitigation when he committed the killing. Serawop, 410 F.3d at 664. One such justification is self-defense. Id. at 664 n.5. And one such mitigation is imperfect self-defense.
A person may resort to self-defense if he reasonably believes that he is in imminent danger of death or great bodily harm, thus necessitating an in-kind response. Toledo, 739 F.3d at 567. Self-defense thus requires both (1) a perception of danger that is objectively reasonable, even if inaccurate; and (2) a necessary response that is proportional to the perceived danger. Id. at 568. Because self-defense completely negates malice, it entitles a defendant to acquittal from federal first- or second-degree murder. Id.
When a defendant responds with force based on an unreasonable perception of danger, we have recognized an imperfect self-defense. Id. at 568-69. Imperfect self-defense applies in a homicide case when a defendant acts in self-defense but is
[T]he distinguishing factor between perfect and imperfect self-defense [is] the reasonableness of the defendants belief that deadly force was necessary to prevent death or great bodily harm—if reasonable, then he is entitled to a self-defense acquittal; if criminally negligent, then he is guilty of involuntary manslaughter. Toledo, 739 F.3d at 569 (footnote omitted).
We recently discussed Serawop and imperfect self-defense in United States v. Sago, --- F.4th ----, 2023 WL 4696258 (10th Cir. July 24, 2023). There, a jury convicted the defendant of (1) first-degree murder in Indian country and (2) causing death by use of a firearm during and in relation to a crime of violence (based on first-degree murder). Id. at *4. On appeal, he argued that the district court plainly erred by failing to instruct the jury that malice requires the absence of justification, excuse, or mitigation—the language from Serawop—and by failing to instruct on imperfect self-defense. Id. at *5-6.
We rejected these arguments, stating that [w]e would never suggest, or tolerate, an instruction that simply said: Malice requires committing the wrongful act without justification, excuse, or mitigation. Such an instruction would be lawless, giving free rein to the jury to apply its own notions of justification, excuse, and mitigation. Id. at *5 (footnote omitted). We also said that a mitigating-circumstances instruction, such as an imperfect self-defense instruction, is
4. Application
Mr. Kepler contends that the district courts malice instruction was plainly erroneous because it did not state that malice requires committing the wrongful act without justification, excuse, or mitigation. Aplt. Br. at 22 (quoting Serawop, 410 F.3d at 664). He argues he suffered prejudice because even though the jury rejected his self-defense argument, there was substantial evidence from which a jury could have found that Mr. Kepler subjectively believed that it was necessary for him to act in self-defense, even if that belief was objectively unreasonable. Id. at 24. Mr. Kepler thus contends that, had the court given the proper instruction, the jury could have found that he acted with imperfect self-defense and therefore without malice. Id. at 24-25. We conclude that any error was not plain.
Mr. Kepler argues the district court plainly erred because it did not sua sponte include the Serawop phrase without justification, excuse, or mitigation in the malice instruction. Unlike Mr. Sago, Mr. Kepler does not contend the district court should have instructed the jury on the elements of imperfect self-defense. See Aplt. Br. at 21-22. He does not even mention imperfect self-defense in his briefs. Under Sago, this omission is fatal. We explained there that simply instructing that the wrongful act [was committed] without justification, excuse, or mitigation without instructing on the elements of the justification, excuse, or mitigation defense would
Further, Mr. Kepler cites no authority suggesting that a court must include the language from Serawop in the malice instruction. The district court instructed the jury, consistent with our pattern instruction, that to kill with malice means either to kill another person deliberately and intentionally, or to act with callous and wanton disregard for human life. ROA, Vol. I at 250. Serawop itself does not help Mr. Kepler. It held that malice may be negated by certain defenses—e.g., heat of passion—but said nothing about how the district court should instruct the jury. 410 F.3d at 664. Indeed, Serawop said that to establish malice the prosecution must prove beyond a reasonable doubt the absence of heat of passion or another legal excuse, when it is an issue in the case. Id. It did not say the district court must instruct the jury about justifications, excuses, or mitigations that have not been raised. Also, Serawop was a voluntary manslaughter case, not a murder case. Malice is not required for voluntary manslaughter, so Serawops discussion of malice was arguably dicta. Id.
Mr. Keplers lack of authority for his argument and our reasoning in Sago preclude a finding that the district courts alleged error was contrary to well-settled law. DeChristopher, 695 F.3d at 1091. Moreover, we have repeatedly said that delivering a jury instruction that matches the pattern instructions weighs against a finding of plain error. Ramos-Arenas, 596 F.3d at 786-87; McGlothin, 705 F.3d at 1267 n.19.
C. No Reversible Prosecutorial Misconduct
1. Plain Error Review
Because Mr. Kepler did not make prosecutorial misconduct objections at trial, we “review the district court‘s failure to grant a mistrial sua sponte based on prosecutorial misconduct for plain error.” United States v. Anaya, 727 F.3d 1043, 1059 (10th Cir. 2013). When applying plain error review to prosecutorial misconduct claims, “reversal is warranted only when: [1] the prosecutor‘s statement is plainly improper and (2) the defendant demonstrates that the improper statement affected his or her substantial rights.” Id. at 1053 (quotations omitted).
To establish that an error affects a defendant‘s “substantial rights,” the appellant must show “there is a reasonable probability that, but for the error claimed, the result of the proceeding would have been different.” United States v. Bustamante-Conchas, 850 F.3d 1130, 1138 (10th Cir. 2017) (en banc) (quotations omitted).
A prosecutor may commit misconduct by eliciting improper and prejudicial witness testimony. See, e.g., United States v. Green, 435 F.3d 1265, 1268-69 (10th Cir. 2006). “A prosecutor‘s questions to witnesses are not improper if the questions elicit testimony for a ‘permissible purpose.‘” United States v. Coulter, 57 F.4th 1168, 1185 (10th Cir. 2023) (quoting United States v. Shamo, 36 F.4th 1067, 1080 (10th Cir. 2022)), cert. denied, No. 22-7557, 2023 WL 3937724 (U.S. June 12, 2023); see also United States v. Lonedog, 929 F.2d 568, 573 (10th Cir. 1991).
A prosecutor may also commit misconduct by making improper comments during closing argument. United States v. Christy, 916 F.3d 814, 824-25 (10th Cir. 2019). In assessing a misconduct claim on this ground, “(1) the court first decides whether the prosecutor‘s comments were improper, and (2) if so, it examines their likely effect on the jury‘s verdict.” Id. at 824. A prosecutor‘s comments are improper if they “encourage[e] the jury to allow victim sympathy to influence its decision,” “distort[] the record by misstating the evidence,” or otherwise invite the jury to base its decision on irrelevant considerations. Id. at 825.
But “the Government is entitled to a reasonable amount of latitude in drawing inferences from the evidence during closing arguments.” United States v. Hammers, 942 F.3d 1001, 1016 (10th Cir. 2019) (quotations omitted). “Arguments may be forceful, colorful, or dramatic, without constituting reversible error. Counsel may resort to poetry, cite history, fiction, personal experiences, anecdotes, biblical stories, or tell jokes.” United States v. Gregory, 54 F.4th 1183, 1210-11 (10th Cir. 2022)
If a prosecutor acted improperly, we must then assess “whether the [conduct] affected the jury‘s verdict” in light of “the trial as a whole.” Christy, 916 F.3d at 826 (quotations omitted). This is a high standard and requires Mr. Kepler to show that the Government‘s statement was “so egregious as to influence the jury to convict” Mr. Kepler on an improper basis. Hammers, 942 F.3d at 1016 (quotations omitted).
3. Application
The alleged misconduct falls into three categories: (1) questions to various witnesses about the disordered state of Mr. Kepler‘s home; (2) cross-examination of Mr. Kepler; and (3) closing argument commenting on (a) physical evidence gathered from Mr. Lake‘s corpse and (b) expert testimony.
None of the prosecutor‘s conduct was plainly improper. Mr. Kepler otherwise fails to show a reasonable likelihood that the alleged impropriety influenced the result of his trial. We therefore affirm.
a. Questions about Mr. Kepler‘s home
i. Additional procedural background
The record suggests that Mr. Kepler and/or his wife hoarded items in their home. See ROA, Vol. I at 384. Before trial, the Government and Mr. Kepler agreed that the prosecution could introduce a photograph of Mr. Kepler‘s house taken shortly after the shooting that depicted the inside in a state of disarray, see Suppl.
At various points during the trial, the prosecution referenced the disordered state of Mr. Kepler‘s house.
Redirect examination of Mark Kennedy. Detective Mark Kennedy executed the search warrant on Mr. Kepler‘s house and testified for the Government. He said that Mr. Kepler had an “excellent reputation” in the workplace. ROA, Vol. I at 505. On redirect, the Government asked whether “the condition of [Mr. Kepler‘s] house [was] surprising to you given what you knew from your role as a police officer?” Id. at 538. Detective Kennedy responded, “Very surprising.” Id.
Redirect examination of Linda Hamlett. Ms. Hamlett, Mr. Kepler‘s mother-in-law, lived near his house. On cross-examination, she testified that Mr. Kepler was a responsible and loving parent. On redirect, the prosecutor asked, “Is it fair to say that you were surprised by the condition of [the Keplers‘] house?” ROA, Vol. I at 553. Ms. Hamlett responded that she was not surprised the house was “messy” given the Keplers’ personal and professional responsibilities. Id.
Cross-examination of Brenda Smith. Brenda Smith, professional counselor, treated Lisa since her childhood. She testified that Lisa had “reactive attachment disorder” when Mr. and Mrs. Kepler adopted her, and that they were thoughtful and concerned parents. ROA, Vol. I at 1165-66. On cross-examination, the prosecutor showed Ms. Smith the picture of Mr. Kepler‘s house and asked, “Did you know about the condition of their residence, ma‘am?” Id. at 1175. Ms. Smith said no. Id. The prosecutor then asked whether the picture “affect[ed] [her] opinion and your testimony” about the Keplers’ parenting. Id. She said it did not. Id. at 1175-76. The prosecutor then asked, “Actually, isn‘t it true that nobody is doing what they‘re supposed to do and somebody‘s gathering excessive materials and nobody‘s getting rid of it?” Id. at 1176. Ms. Smith responded that the Keplers’ house “is very cluttered, you are correct.” Id.
ii. Analysis
The Government‘s questions about Mr. Kepler‘s home were not plainly improper. Mr. Kepler cites no factually similar case, so he has not met his burden to
Detective Kennedy and Ms. Hamlett both offered positive character evidence about Mr. Kepler‘s role as a police officer or a parent. The Government was entitled to rebut that evidence by demonstrating that neither witness was familiar with Mr. Kepler‘s circumstances. See, e.g., United States v. Gutierrez de Lopez, 761 F.3d 1123, 1133 (10th Cir. 2014) (noting a party can impeach a witness by asking questions to show a lack of personal knowledge of the subject of the witness‘s testimony).
In the same vein, Ms. Smith opined that the Keplers were thoughtful and concerned parents. Once again, the Government was entitled to rebut that testimony by demonstrating that Ms. Smith lacked knowledge of the conditions in the Keplers’ home.
Because the Government had a case-related purpose for asking questions about the home, Mr. Kepler has not shown the prosecutor‘s conduct was plainly improper.
Additionally, the questions about house clutter were fleeting compared with the evidence as a whole and did not elicit especially damaging evidence. Mr. Kepler thus has not shown that the questions were “so egregious as to influence the jury to convict” Mr. Kepler on an improper basis. Hammers, 942 F.3d at 1016 (quotations omitted).
i. Additional procedural background
During cross-examination of Mr. Kepler, the prosecutor repeatedly asked him questions about conflicts between his testimony and that of the Government‘s witnesses. After Mr. Kepler discussed his version of events, the prosecutor asked, “You agree with me that in order for your story to be accurate, essentially every government witness has to be inaccurate or lying, one of those two?” ROA, Vol. I at 1286. Mr. Kepler gave unresponsive answers, but the prosecutor persisted, asking, “If you‘re telling the truth, they‘re not?“, and “They‘re inaccurate and you are accurate?” Id. at 1287. Mr. Kepler said, “They‘re inaccurate,” referring to the Government‘s witnesses. Id.
Throughout this exchange, Mr. Kepler‘s attorney objected based on the form of the prosecutor‘s questions but did not suggest prosecutorial misconduct. Id. at 1286-88.
ii. Analysis
The Government‘s cross-examination of Mr. Kepler was not plainly improper. Again, Mr. Kepler fails to cite any Supreme Court or Tenth Circuit authority stating that a prosecutor cannot question a defendant regarding the incompatibility of his testimony with the testimony of other witnesses. He cites United States v. Richter, 826 F.2d 206 (2d Cir. 1987), which established a per se rule that a prosecutor cannot “compel[] a defendant to state that law enforcement officers lied in their testimony.”
The Government‘s questions were otherwise proper. Mr. Kepler tries to frame the questions as seeking lay testimony from Mr. Kepler about the credibility of other witnesses. But they more accurately reflect the prosecution‘s efforts to show that Mr. Kepler‘s account was at odds with the testimony of others. As noted, Mr. Kepler‘s testimony that Mr. Lake pointed a chrome pistol at him flatly contradicted the testimony from the Government‘s witnesses, who testified that they had never seen Mr. Lake with a handgun, that he did not draw a handgun when Mr. Kepler confronted him, or both. See ROA, Vol. I at 474, 558, 567-68, 573, 626-27, 636-37, 643-44, 646, 749, 774, 792-93, 813, 826, 925, 928-29, 939. To accept Mr. Kepler‘s testimony would thus mean, as the prosecutor said, that the other witnesses who saw the shooting were “inaccurate or lying.” ROA, Vol. I at 1286.
Further, the challenged questions were a “small fraction” of Mr. Kepler‘s testimony, Coulter, 57 F.4th at 1184, and underscored a point that was already clear—that other witnesses contradicted Mr. Kepler‘s testimony. Thus, Mr. Kepler has again failed to show any likelihood that “the c[onduct] affected the jury‘s verdict” in light of “the trial as a whole.” Christy, 916 F.3d at 826 (quotations omitted).24
c. The Government‘s closing argument
i. Additional procedural background
The Government introduced expert testimony on various forms of forensic evidence to show that Mr. Lake had not drawn or possessed a weapon when Mr. Kepler shot him. For example, it presented blood spatter evidence suggesting that Mr. Lake had tried to run away after Mr. Kepler drew his gun, see ROA, Vol. I at 994; bloodstains on Mr. Lake‘s hands showing that he was not holding anything when Mr. Kepler shot him, id. at 997; and a DNA profile obtained from the chrome pistol, which “excluded” Mr. Lake as a contributor. Id. at 1094. Mr. Kepler contends the prosecutor improperly referred to this evidence in his closing argument.
1) Discussion of physical evidence taken from Mr. Lake
During closing argument, the prosecutor delivered what Mr. Kepler describes as a “soliloquy from the perspective of the victim.” Aplt. Br. at 29. Specifically, the prosecutor discussed inferences he believed the jury could make from physical evidence taken from Mr. Lake‘s corpse. The challenged portion of the closing argument reads in full as follows:
What did Jeremey Lake tell you? No, I‘m not crazy. I know that Jeremey Lake is deceased. But nonetheless Jeremey Lake told you things. Jeremey Lake told you the defendant said, I had a gun out, that I had recovered a shiny semiautomatic handgun from my pocket and had already pulled it out, but my head wounds tell you that that‘s not what happened. I did not have my hands out. I did not try to break my fall. My head broke my fall. Jeremey Lake himself told you that.
The defendant said that he shot at Jeremey Lake and that Jeremey Lake then ran at him. Jeremey Lake told you with his blood that he was running away.
The defendant said that it was a shiny semiautomatic handgun that I had in my hand that day. I used every drop of blood in my heart to tell you that this gun was not at the scene.
Jeremey Lake told you by the blood patterns and the voids on his hands and in other locations, I did not have a gun, my hands were on my chest.
ROA, Vol. I at 1351.
2) Characterization of expert testimony
Also during closing argument, the prosecutor discussed the absence of physical evidence connecting the chrome handgun found in the Tulsa Police Department trashcan to Mr. Lake. He summarized the expert testimony as follows:
The professionals told you that there w[ere] no prints or DNA on the shiny semiautomatic handgun at all. The professionals told you that Jeremey‘s DNA was not on the defendant‘s gun. He was excluded as being the person whose DNA was there; the defendant, again, not surprisingly, was not excluded. What the professionals told you in sum is, that Jeremey Lake did not have a gun.
ROA, Vol. I at 1350 (emphasis added).
1) Discussion of physical evidence taken from Mr. Lake
The prosecutor‘s monologue from the perspective of Mr. Lake was unusual but not plainly improper. It fell within the prosecutor‘s leeway to make “forceful, colorful, or dramatic” closing arguments. Gregory, 54 F.4th at 1210-11 (quotations omitted).
Mr. Kepler has failed to present any Supreme Court or Tenth Circuit authority suggesting that a prosecutor may never speak from the perspective of the victim. He therefore has not shown plain error. He cites Drayden v. White, 232 F.3d 704 (9th Cir. 2000), which is factually inapposite. In Drayden, the prosecutor sat in the witness chair, acted like the victim, and delivered a prolonged and impassioned monologue where he editorialized about the victim‘s good character. Id. at 711-13. After finding this improper, the Ninth Circuit declined to “adopt a per se rule that a prosecutor‘s ‘testimony’ in the voice of the victim during closing argument violates a defendant‘s due process rights.” Id. at 713 (“[I]n a particular case, a prosecutor‘s brief excursion into a dramatic role could be wholly innocuous.“).
The prosecutor‘s use of Mr. Lake‘s persona did not “encourag[e] the jury to allow victim sympathy to influence its decision” or “distort[] the record.” Christy, 916 F.3d at 825. Instead, he focused on the factual inferences the jury could draw from the physical evidence derived from Mr. Lake‘s corpse. ROA, Vol. I at 1350. For example, he discussed the blood spatter patterns showing that Mr. Lake was running away when Mr. Kepler shot him, the forensic analysis showing that Mr. Lake
Finally, Mr. Kepler has not shown a reasonable likelihood that the prosecutor‘s monologue influenced the outcome of the trial. As discussed, the central issue in the case was whether Mr. Lake pulled a gun—as Mr. Kepler claimed—or whether he was unarmed. The evidence that Mr. Lake did not have a gun was ample and came from multiple sources, and the prosecutor‘s comments summarized that evidence.
2) Characterization of expert testimony
The prosecutor did not mischaracterize the expert testimony in his closing argument. Because his comments did not “distort[] the record,” they were not improper. Christy, 916 F.3d at 825. The prosecutor summarized expert testimony showing the absence of any DNA or fingerprint evidence tying Mr. Lake to the gun found in the trashcan. He then said, “What the professionals told you in sum is, that Jeremey Lake did not have a gun.” ROA, Vol. I at 1350. Mr. Kepler claims that “no ‘professional’ testified that ‘Jeremey Lake did not have a gun.‘” Aplt. Br. at 32. But in context, the prosecutor was asking the jury to draw the reasonable inference that Mr. Lake did not have a gun from the absence of evidence connecting him to the gun discovered in the police trashcan. See Hammers, 942 F.3d at 1016 (prosecutors are “entitled to a reasonable amount of latitude in drawing inferences from the evidence
Further, as noted, extensive evidence supported the Government‘s position that Mr. Lake did not have a gun, let alone the chrome handgun described by Mr. Kepler. Mr. Kepler has therefore failed to show a reasonable likelihood that the prosecutor‘s statements changed the outcome.
D. No Cumulative Error
Mr. Kepler contends that the cumulative effect of the errors he identifies rendered his trial unfair. Aplt. Br. at 49-51. When an appellant presents a mix of preserved and unpreserved errors on appeal, we proceed with the cumulative error analysis as follows:
First, the preserved errors should be considered as a group under harmless-error review. If, cumulatively, they are not harmless, reversal is required. If, however, they are cumulatively harmless, the court should consider whether those preserved errors, when considered in conjunction with the unpreserved errors, are sufficient to overcome the hurdles necessary to establish plain error. In other words, the prejudice from the unpreserved error is examined in light of any preserved error that may have occurred.
United States v. Caraway, 534 F.3d 1290, 1302 (10th Cir. 2008). If we dispose of an unpreserved error on the second prong of plain error review—that is, we decide the error was not “plain“—then it does not factor into the cumulative error analysis. United States v. Cristerna-Gonzalez, 962 F.3d 1253, 1268 (10th Cir. 2020) (where “we disposed of [an asserted error] on the ground that any error was not plain,” that error did “not factor into the cumulative-prejudice analysis“).
III. CONCLUSION
We affirm the district court.
Notes
United States v. Kepler, N. 20-CR-00276, 2021 WL 4027203, at *1 (N. D. Okla. Sept. 3, 2021) (“Kepler“) (granting in part and denying in part Mr. Kepler‘s motion for judgment of acquittal underMr. Kepler was tried four times in state court. In the first trial, in November 2016, the jury convicted Mr. Kepler of two counts of reckless conduct with a firearm, but declared itself hung with respect to the murder charge. The second trial, which occurred in February 2017, resulted in a hung jury as to murder in the first degree. The third trial, which occurred in June and July 2017, also resulted in a hung jury as to the murder count. In October of 2017, the fourth jury convicted Mr. Kepler of the lesser-included offense manslaughter in the first degree—heat of passion and sentenced him to fifteen years imprisonment. Mr. Kepler appealed his convictions to the Oklahoma Court of Criminal Appeals.
Mr. Kepler also argued in his motion that the statute of limitations had run on his Count 3 charge for assault with a dangerous weapon. The district court agreed and granted judgment of acquittal. Kepler, 2021 WL 4027203, at *3-4. That ruling is not part of this appeal.
Justice Kavanaugh, joined by Chief Justice Roberts and Justices Alito and Barrett, dissented, positing that “the phrase ‘against the person of another’ . . . has zero to do with the required mens rea for predicate violent felonies.” Id. at 1839 (Kavanaugh, J., dissenting).
“In the context of fractured Supreme Court opinions, [] of the various opinions concurring in the judgment, the one that sets out the narrowest decisional basis represents the opinion of the Court.” United States v. Shakespeare, 32 F.4th 1228, 1237 (10th Cir. 2022) (citing Marks v. United States, 430 U.S. 188, 193 (1977)). An opinion sets out the narrowest decisional basis if it “is a logical subset of the other opinion(s) concurring in the judgment.” Id. at 1238 (quotations omitted).
Here, both parties rely on the plurality, and we have previously cited it as controlling. See, e.g., United States v. Ash, 7 F.4th 962, 963 (10th Cir. 2021). We conclude that the Borden plurality is a “logical subset” of Justice Thomas‘s concurrence and therefore the plurality “set[] out the narrowest decisional basis” for the Court‘s holding. Shakespeare, 32 F.4th at 1237-38.
159 F.3d at 486.[T]he only reason the government was able to convict Mr. Pearson of first degree murder was because Mr. Pearsons commission of the robbery constructively supplied the malice aforethought required to satisfy the definition of [first-degree] murder in
§ 1111(a) . While the underlying robbery is constructive or implied malice aforethought for first degree felony murder, neither the robbery nor the accidental killing satisfies the types of constructive or implied malice aforethought described above that are required to prove second degree murder.