*3 COFFEY, Circuit and Before CUDAHY FAIRCHILD, Circuit Senior Judges, and Judge. Judge.
FAIRCHILD, Senior Circuit and Martinez, Noel Kenneth W. C. Rene prison, Garcia, at Oxford T. inmates Steven within institution correctional a federal States, of the jurisdiction territorial of an death jury for the before were tried another. On inmate and assault 18, 1991, the defendants November murder, 18 second-degree guilty of found causing assaulting U.S.C. § 113(f). Noel U.S.C. injury, 18 serious possession guilty of additionally was found inmate, 18 U.S.C. by an weapons 1791(d)(1)(B).1 1791(a)(2) & §§ terms of 200- to concurrent sentenced was term year years, a five five months assess- release, a criminal supervised sen- was Noel of $100.00. penalty ment 405 months terms of concurrent tenced re- supervised years years, five and five assessment lease, criminal a $200.00 to concur- sentenced Garcia was penalty. years, five months and of 212 rent terms release, and a $100.00 supervised years five In each case penalty. assessment criminal is consecutive imprisonment the term ap- On being served. presently the term a number raise defendants peal, the of their con- propriety regarding the issues We affirm. victions. l-A-25; 4-B-45. script at guilt counts. Tran- as to these conceded
1. Noel
then or
no resistance
and Brown offered
I.
At
the encounter.
during
remainder of
7:45
27, 1991,
approximately
April
On
officers
time,
held
back
same
Noel
Mar-
between
out
PM,
fight
fist
broke
was
The shank
holding up a “shank.”
wing
B
Sammons
tinez
Charles
pick-type knife consist-
an ice
described
pris-
at Oxford
Unit
Portage House
eight
six to
approximately
ing of
blade
seconds,
the A
inmates
on. Within
handle. Tr.
to a black
long attached
inches
on
watch and cheer
wing gathered to
Band
The officers observed
l-B-112.
L. Glattfelder
Darren
fight.
Officer
yelling
and was
highly agitated
Noel
the scene.
guard to arrive
the first
Tr. at 1-B-
stay
back.
the officers
inmen
two
stepped between
He
drop
demands
Despite the
officers’
*4
Transcript at
fighting.
stop the
effort to
shank,
to stab the vic-
proceeded
Noel
light-
and
shorter
was
1-B-ll. Glattfelder
times,
then turned
tims a number
contestant, and the blows
than either
er
“Stay
yelled,
back. When
around and
up
it
on his
to break
continued. Unable
him, you can have
through with
we’re
body
his
alarm2
own,
depressed
Glattfelder
time,
2-B-41,
At the same
him.” Tr.
that a
officers
notify other correctional
back and
Garcia switched
Martinez and
pushed
arisen. Glattfelder
problem had
they con-
the two victims
forth between
inmates, making his
through the crowd
was
them. There
to kick
beat
tinued
and
wing
B
of the
way
entrance door
to the
Martinez’ shoe
point
at one
testimony that
tes-
Glattfelder
responding officers.
meet
The offi-
mouth.
caught in Brown’s
he did not observe
trial that
tified at
order the defendants
cers continued to
fight.
point in the
at this
weapons involved
the inmates
approached
stop and Schirmer
Tr. at l-B-10-14.
the attack
mop wringer however,
with a
—
out,
fight initially broke
At the time
continued. Even-
and Brown
on Sammons
in the B
were
and Noel
inmates Garcia
Noel,
Martinez,
and Garcia volun-
tually,
and Noel
room. Garcia
wing television
and returned
tarily
the attack
ceased
shortly after Glatt-
joined in the encounter
immediate area.
cells in the
their
There was testi-
the alarm.
felder sounded
that,
was re-
point, Martinez
mony
at this
of the shank
ownership and use
Both the
Garcia,
fight.
ceiving
of the
The
the brunt
unclear.
remain
during the encounter
roommate,
on his be-
interceded
Martinez’
that Noel
clearly
evidence
demonstrated
joined in after
that he
Noel testified
half.
and Brown with
Sammons
struck both
the corridor from
observing Brown enter
no direct testimo-
there was
shank. While
Martinez from behind.
grab
cell and
either Martinez or
demonstrating that
ny
participant
active
Brown
an
Whether
shank,
testified
witnesses
Garcia used
merely
bystand-
innocent
fight,
or
an
making a thrust-
they
Garcia
observed
er,
at trial.
was contested
knelt over
fist as he
ing
with his
motion
Margiotta
Additionally, inmate
Sammons.
Schirmer, Shy, and Williams and
Officers
Sammons,
Noel stabbed
testified that while
responded to Glatt-
Specialist Merrill
Rec.
continually
down and
Martinez held him
Shy
and
alarm. As Schirmer
felder’s
2-A-55,
Tr. at
him in the face.
struck
through
way
the crowd
pushed their
testified that both
Cummings also
Inmate
fifty inmates that had
approximately
now
“rolling”
were
Sam-
Garcia
Glattfelder,
and Merrill
gathered,
Williams
him. Tr. at 2-A-
Noel
mons while
stabbed
to their cells.
the crowd of inmates
directed
testimony was buttressed
157-58. This
arrival,
Shy
ob-
their
Schirmer
Upon
Williams,
he observed
who testified
continually
and Garcia
served Martinez
“uncurl” or
or Martinez
either Garcia
and Brown as the
punch and kick Sammons
him.
as Noel stabbed
“open” Sammons
lay
hallway
floor. Sammons
on
two
apparatus also
working directly
The
in-
an officer-needs assistance.
with
2. Correctional officers
carry
device. When activat-
acts as a
officers
communication
are unarmed. These
mates
ed,
which,
activated,
directly
pris-
speak
with the
body
a loud
the officers can
emits
alarm
when
Tr. at l-B-6-7.
signals
dispatcher
control center.
beeping
sound and
thereafter,
and Brown were
Sammons
trial
adduced
the evidence
None
offering little or no resistance.
or Garcia down
that Martinez
demonstrated
that the officers
During most of
time
fight. Whether
the shank
brought
scene,
shank,
Martinez and Garcia
on the
initially introduced
were
Noel
kicking
punching
Noel re-
Sammons
brought
it and
Brown
whether
Brown,
him,
alternating
at trial.
them. Noel
between
was contested
trieved
times,
that Mar-
than 27
show
Sammons more
testimony did tend to
stabbed
The
with them
the shank
received five stab wounds.
took
tinez and Garcia
Brown
cells and
their
they went back to
when
19, 1991,
indictment was
an
On June
line, along with
it into the sewer
flushed
three
against
defendants.
returned
April
clothing. On
torn sweat
pieces of
with
charged
I
all
defendants
three
Count
incident,
items were
these
day
after
Sammons; Count II
degree murder of
first
approximately
from the sewer
extracted
Brown, resulting in serious
assault of
and Garcia’s
location as Martinez’
the same
III and IV each
bodily injury; and Counts
clothing was sim-
Tr. at l-B-73.
cell.
possession
an inmate
charged Noel with
at the
Martinez wore
that which
ilar to
object designed and intended
wearing
encounter,
but was
time of
“object” in
weapon.
as a
Count
used
evening.
later
*5
used to
apparently was
shank
stab
III
the
taken
Brown were
and
Sammons
Both
Although some of
and Brown.
Sammons
died
Sammons
treatment.
for medical
Noel,
error, particularly by
of
the claims
Hunting-
Dr. Robert
shortly thereafter.
II,
assign
defendants
to Count
all
relate
ton,
that
the
pathologist, established
respect
I.
to Count
error
two stab
from one of
of death was
cause
I, Judge Shabaz submitted
Under Count
the approximately
out
wounds
murder,
degree
verdict on
as
first
forms
(a
body
num-
found on Sammons’
wounds
degree
also on
murder
charged, and
second
back).
One
of which entered from
ber
voluntary manslaughter as lesser in-
and
entered the
apparently fatal wounds
peculiar
element
offenses. One
cluded
head, continued
left side of Sammons’
degree
the circumstances of
murder in
first
down into the
through the
across
brain and
jury acquit-
The
premeditation.
is
case
this
right eye. The other wound
over the
bone
murder,
degree
ap-
of first
defendants
ted
pulmo-
and
back
severed
entered
A
finding no
sec-
premeditation.
parently
from serious
Brown suffered
nary vein.
element,
and second
to first
common
ond
five stab
including approximately
injuries,
aforethought”,
murder, is “malice
degree
wounds,
jaw,
a loss of five
a broken
parties’ argu-
in the
dealt with
principally
beating,
Brown
As a result
teeth.
“intent.”
in terms of
U.S.C.
ments
prop-
chew
impaired perception, cannot
has
Manslaughter is the unlawful kill-
§
feeling in the lower
has lost the
erly and
malice, and it
being
ing
a human
without
2-B-110, 111. The
mouth. Tr.
part
manslaughter
voluntary
if
as
punished
injuries
stipulated
Brown’s
that
defendants
pas-
heat of
quarrel or
“upon a sudden
serious.
1112(a). The defen-
18 U.S.C.
sion.”
concerning
trial,
testimony
At
detailed
here,
that
argued at
echoed
dants
by numerous wit-
given
these events
kill,
design to
they
premeditated
had no
elapsed time dur-
The estimates of
nesses.
fast a
at so
proceeded
the events
that
longest estimate
fight vary;
ing the
to,
opportunity
they had no
that
pace
episode
ten
approximately
minutes.
not,
equivalent to
mal-
form
intent
did
initially,
as follows:
can
summarized
argued
government
aforethought. The
ice
fistfight
Sammons
there was
between
jury
found
ample time.
there was
that
to the aid of
Garcia came
and Martinez.
guilty of second de-
defendants
three
all
Martinez,
seems to have
and then Brown
murder,
finding malice afore-
thus
gree
Sammons, although he was
help
joined to
thought.
how he became
remember at
unable to
trial
additionally instructed
judge
The district
encounter
joined
Noel next
involved.
self-defense, including
and,
elements of
shortly
on
help Martinez and Garcia
the mur-
prevail on
is to
government
none of
appeal,
On
another.
defense
charge.
they
der
that
seriously contends
defendants
acted
find that
would
voluntary
diced
each
a claim
ond
a sudden
tions.
regarding
The defendants
degree murder
contends
him
have
self-defense,
of defense
he
so
quarrel
manslaughter.
in his
acquitted
killed without
found
propriety
that
chance
raise
heat of
alleged errors
of another.
found
a number of
to have
defendant
only
of their
any of
malice and
passion.
him
Noel
guilty
them, it
Rather,
convic-
of sec-
makes
issues
preju-
upon
jury
Had
Tr. at
jected
slaughter, arguing
should
sudden
fear,
might
in order
Heat
out reflection.
son
self-control
[*]
4-B-128,
treat a
rage,
quarrel”
naturally
passion
passion of
anger or terror.
[*]
proposed
and act
killing
adequate, must
as a matter
cause a reasonable
[*]
may be
The defendants
instruction
the moment
impulse
[*]
occurs
provoked
distinct
Provocation,
instruction
be such
[*]
on man-
“upon a
to lose
with-
from
per-
sj<
ob-
as
beyond
proved
so as to be
passion,
II.
of man-
as an element
doubt
a reasonable
Upon a
Killing
case,
to Instruct
Refusal
A.
in this
importantly
slaughter, or more
of Vol-
Quarrel is an Element
Sudden
doubt be-
reasonable
beyond a
disproved
Manslaughter Distinct
untary
of murder.
a conviction
can be
fore there
Passion
in Heat of
Killing
requested
to include
declined
The court
quarrel
concluding
“sudden
language,
manslaughter
defined
Voluntary
the Court’s
fall within
very well
would
has remained unaltered
by a statute
*6
Tr.
at
passion.”
of heat of
definition
It is the un
in 1948.
its enactment
since
court
appeal that the
on
asserts
17. Garcia
malice,
another, without
killing of
lawful
jury that
to instruct the
erroneously failed
pas
heat of
quarrel or
sudden
“upon a
voluntary
for
return a verdict
they could
1112(a). In
context
18 U.S.C.
sion.”
he acted
upon finding that
manslaughter
trial,
significant
was
issue
the most
of this
quarrel”.3
“upon a sudden
voluntary man
killing
was
whether
had the bur
we
government
that
cannot
slaughter
government
and
contends
The
close of
At the
on that issue.
we
that
district
proof
of
unless
find
den
reverse
error”,
largely
instructed
due
judge
“plain
the district
committed
court
that
manslaughter:
the court
voluntary
to inform
failure
Garcia’s
component of
quarrel”
volun-
presented that
“sudden
has been
Evidence
theory of de-
tary manslaughter was
passion.
heat of
in the
acted
defendant
government,
murder. The
howev-
fense to
presented,
has been
Where such evidence
objection was
er,
that Garcia’s
prove
concedes
government
is on
burden
44),
(Gov. Brief,
“comprehensive”
that Defen-
doubt
a
beyond a reasonable
pro-
agree.4
submitted
we
Garcia
passion,
of
if
must
in the heat
not act
dant did
by
proved
defendant
and unlawful act unless
failed to
argues
the court
that
Garcia also
prov-
preponderance
passion
must
on sudden
jury that
the Government
instruct
prove
reversal).
beyond
doubt the absence
a
Because we hold
required
reasonable
ocation
Lesina,
v.
quarrel.
United States
See
Cir.1987) (“the
a sudden
quarrel
not
on sudden
was
that the instruction
(9th
government
F.2d 156
argument
required,
address this
we need not
beyond
proving
a reason
bears the burden of
concerning
proof.
burden of
passion or
of heat of
the absence
able doubt
raised");
quarrel
defense
sudden
where
pro-
initially submitted a
particular, Garcia
In
(10th
Lofton,
Cir.
The definition What Section Statutes, 5341, amplified so as respect Revised to section 270 is true as to re- specific section, manslaughter being acts defined include a number of this death, language do not come with- similar to sulting in and classified large majority language of that section. found in the statutes of of the states. [Id. 24] Revise Report 1 Final of the Commission report by Special A Joint Committee Codify of the United States the Laws Laws, later, Revision and (1906). the Revision of years the Commis- Two Laws, Etc., H.Rep. No. The man- Codification report. sion issued another (1908); S.Rep. Cong., 1st Sess. 1-5 section, 60th now labeled as Section slaughter (1908). Cong., 1st 1-5 No. 60th Sess. language contained the identical 1112(a), 4, 1909, differs enacted March ch. Section today. exists Act of provisions However, only Act in its from the 1909 no 35 Stat. § manslaughter.7 relating involuntary change explanation given for comments, (1970). the Commis- In its Although voluntary manslaughter statute 174-75 today, free unaltered it has not been stated: remains sion 1960’s,Congress manslaughter,’ scope enact- ‘voluntary attack. In the late As to 89-801, which established a Na- ed Public Law 'provocation' to in- is broadened admissible of the Federal Commission on Reform tional excusably anything to 'ex- leads clude an Laws. This Commission conducted Criminal example, disturbance.' For treme emotional laws. review the federal criminal extensive might relatives or seduction of female taunts recommended the fol- In lowing language the Commission disturbance But extreme emotional suffice. manslaughter: manslaughter if the not reduce murder will manslaughter, guilty B person is a Class A brought own culpably about his actor has felony, if he: disturbance, by involving himself such mental (a) recklessly the death of another causes reasonable, crime, is not or if the excuse ain (b) being; an- causes the death of human provoke political where events such as being circumstances human under other assassination. murder, except that he causes which would be omitted). (citations Comment to of extreme emo- the death under the influence additionally printed voluminous Commission there is reason- disturbance for which tional *9 Here, criti- working papers. the Commission of the ex- able excuse. The reasonableness existing federal law: law and cized the common viewpoint shall be determined from cuse present is that law] [of The rationale person circum- in his situation under the of a only homicidally under persons who behave them to be. An emo- stances as he believes great present a provocation so do not serious excusable, within the tional disturbance is meaning Also, security. general it has been threat to paragraph, it occasioned of this if is argued, beside himself the offender was if any provocation, event or situation for emotion, anger is useless to it with or other culpably responsi- was not which the offender him, against gravest as employ sanctions ble. hopefully try a coldblood- might to deter one Report the National Commission on Final 1602, capital punish- the threat of ed killer with Laws § Reform of Federal Criminal 694 Sand, 1A L. e.g., Congress in the same manner. See the above appears from
It
Jury
distinguish
al,
Federal
Instructions
be-
Modern
an intent
et
manifested
manslaughter by the
41.02,
41-17,
¶
comments
41-18 and
tween murder
Instr.
It is fur-
of malice.
presence
absence
(1992).
apparently
or
blend the
Other courts
the intent of
it was
ther evident that
jury
instructing that the
together by
terms
quarrel or
legislature that
the “sudden
acted “in
the defendant to have
must find
its com-
language retain
passion”
heat
quarrel
“upon sudden
passion” or
sudden
this,
legis-
meaning. Beyond
mon law
fact,
court has
passion”. In
one
in heat of
little assis-
us with
history provides
lative
as to
the term is so obvious
ruled that
intend-
understanding the statute’s
tance
e.g.,
explanation at all. See
require no
meaning.
ed
735,
Hardin, 443 F.2d
v.
States
United
standing of the “sudden
present
(“the
(D.C.Cir.1970)
‘mutual
words
738-39
and state
in federal
quarrel” language
sufficiently self-explanato-
combat’ ... are
isWhat
courts8 is not well-documented.9
require
ry so as to not
elaboration
interpret
have
few courts
apparent is that
reasonably
convey their intent to
court to
manslaughter statute in a
voluntary
ed the
intelligent jury”).
quote
Typically, courts
consistent manner.
apparently
case
exists
little
law
What
(including “sudden
statutory language
the two terms —“sudden
indicates
their discus
quarrel”), and then continue
not re
quarrel”
passion”
“heat of
—do
passion.
to heat of
solely
applies
sion
meanings.
courts treat
tain distinct
Some
Collins,
F.2d
v.
690
e.g.,
States
See
United
type
provocation
quarrel”
“sudden
as a
denied,
Cir.1982),
431,
(5th
cert.
passion.
causing
to kill
one
1447,
1046,
695
(cit
305-06,
at 1020
573 P.2d.
another,
at
223 Kan.
one
from
discrete
slaughter were
and Proce
Law
1
Criminal
ing Wharton’s
reasoned:
the court
Law,
280;
on Criminal
Perkins
dure §
probably
quarrel’ is
phrase ‘sudden
The
61; 40
Am.Jur.2d,
57-59;
Homicide
40
§
af-
the ‘sudden
of
descendant
the direct
omitted).
42)
Other
(quotations
C.J.S. §
of-
common-law
element of
fray’
quarrel” is
“sudden
agree that
states
literal, nonhistoric
In its
....
fense
causing one to act out
type
provocation
of
quarrel that
surely not the
it is
meaning,
v.
e.g., State
passion.
of
See
in the heat
passion that
the heat
signifies but
(1989)
436,
N.W.2d 890
Pettit,
445
233 Neb.
feigned
Manifestly, a mere
occasions.
recognized as
legally
(sudden quarrel
is
no
would
passion,
without
quarrel,
causing reasonable
provocation
sufficient
whatsoever.
excuse
self-control); People
lose normal
person to
411,
353,
Additionally,
Leonard,
ruled
Ill.2d
47 Ill.Dec.
83
705.
v.
Id. at
case,
(1980)(“mutual
has
combat
trial
358
facts of the
415 N.E.2d
that under
adequate
as
in Illinois
recognized
passion caused been
emphasis on
court’s
reduce the of
provocation, sufficient
justified.
adequate provocation
manslaughter”);
voluntary
State
fense to
Id.10
(Iowa 1980)(prov
696 meaning, Garcia its historic term retains manslaughter is the unlawful
Voluntary issue) (the this malice, only defendant to brief being, without killing a human requested. the instruction not entitled to passion. quarrel or upon a sudden persons who not one of the two one He was existence of but requires the The law in mutual willingly engaged conditions, may have been provocation to re- of these Rather, ongoing he entered murder combat. homicide from a felonious duce aiding one of purpose for the encounter manslaughter.... Likewise, not Noel was the combatants. 1022; 579, see 93 P.2d Cal.App.3d at 34 He en- here. to the instruction entitled Cal.App.2d 259 Whitfield, People v. also aiding purpose of fight for the tered However, (1968). a 605, Cal.Rptr. 438 66 that Martinez do we believe Martinez. Nor reveals a decisions at other California look instruction, although was entitled to the interpretations of of inconsistent number initially engaged in a arguably, Martinez passion” affray” “heat of the “sudden could fall fight fist with Sammons Pacheco, 116 Cal. language. People v. See quarrel”. meaning of a “sudden within (1981); 617, Cal.Rptr. 269 Peo App.3d 172 However, joined in and Noel once Garcia 498, Perrotta, Cal.App.2d 36 224 ple v. picture, the attack and a knife entered Small, (1964); People v. 7 Cal.Rptr. 813 something very different into escalated (1970); Cal.Rptr. 478 86 Cal.App.3d quar- a “mutual combat” or “sudden 714, 4 Cal.App.2d 179 Dugger, People v. rel.” Sedeno, (1960); People Cal.Rptr. 388 Cal.Rptr. P.2d 913 Cal.3d to Instruct that Prior Sworn B. Refusal (1974), grounds on other overruled is Probative of Inconsistent Statement Flannel, 25 Cal.3d Cal. People v. Truth its (1979); 84, 94, People P.2d Rptr. conference, At the instruction Best, P.2d 168 Cal.App.2d proposed to instruct disparity, the district court (1936). large part to their Due prior state particular jury regarding inconsistent these cases to be do not find we ments: ly helpful. a that on some former occasion Evidence assigns text which note a recent We also inconsistent witness made statement meaning to the term “mutual
a distinct testimony in case his or her this with persons willingly two combat”: “[w]here by you only in deter- may considered combat, be during the in mutual engage credibility mining the witness other as the result of an fight one kills the the truth of the matters strug- not establish during formed intention to do so prior statement. contained in that long been held to be gle, the homicide has murder, the notion manslaughter, and not pro- objected Counsel for occasion, of the being that the suddenness posed requested instruction and the follow- victim, by the provocation rather than some ing addition: “unless the statement was killing to some- mitigates the intentional prior proceeding and then it under oath Wayne R. La- thing less than murder.” In this can considered for its truth.” Scott, Substantive Fave and Austin W. context, for Martinez mentioned counsel (1986). 7.10(b)(2)at 256 Criminal Law § testimony, Williams’ cited Rule discussion, hearsay stated that “it is not if it was foregoing light prior proceeding.” oath in a Tr. at quarrel” under may arguable that the “sudden meaning judge no 4-A-62. The district denied Mar- term an anachronism proper defini- tinez’ adequately addendum. We believe the addition served go We need not so was a correct statement of passion. tion of heat of law under Fed- the term from eral Rule of justify far the omission of Evidence 801 and should have given.11 case. Even if the been the instruction this 801, upon hearsay A statement is not 11. Federal Rule of Evidence if [t]he ... declar- relies, hearing ant testifies at the pertinent part: trial or provides and is counsel subject concerning to cross-examination
697 alone, on the scene was while Glattfelder given estimates trial, had the officers At fight only a fist between pre- there was time, that at a and but admitted elapsed Martinez; II, the time given from hearing they had and evidentiary Sammons trial scene until argued left the immediate defendants which Glattfelder estimates III, arrived; had the time and showed that the other officers he and inconsistent significance has This issue the encounter shorter. that arrival until been the defendants to whether to 45 it relates I estimated at 30 Part was ceased. aforethought, an element malice in con- seconds, formed not be considered and need murder.12 to convict for in order proved being be re- argument the now nection with the defendants to whether It relates that, also according to Martinez asserts solved. malice, degree necessary for second formed II testimony, Part the Williams-Glattfelder presence or parties the treat murder. seconds, III 150 to 120 Part 90 to lasted intent, terms of element in of this absence seconds, time the and the maximum 180 During here. language and we use 240 300 seconds—or four was used knife argued prosecutor the closing arguments, pre-trial testi- Using minutes. the five time had sufficient defendants the Part II lasted mony, he contends that In this to kill. the intent to form which seconds, seconds, and the III 45 to 60 Part the as- argued that context, prosecutor the to 120 seconds— knife-time 105 maximum seven approximately lasted between sault minutes. three-quarters to two or one The de- Tr. 4-B-17. eight minutes. given jury, the as told The instruction not have they could argued that fendants statements, effect, if incon- that the earlier inter- kill intent to because formed .deciding sistent, could be considered first used the time knife val from to believe Williams-Glattfelder whether very short. affray was the end of the until trial, relied on but could estimates that Mar- testimony shows Although the had lapse time been find that kick viciously to tinez and Garcia continued indicated. earlier as the statements short Brown, even after and beat Sammons had been the earlier statements Because defenseless, been rendered the latter had prior proceeding, in a oath given under only the to contend that appears Martinez could that it been told jury should have held and he cannot be produced death knife true, if inconsistent. them as consider he unless fatal for the wounds responsible use of to learn about Noel’s apply time urges had us to The Government join with an intent to and then form here knife standard “plain error” heightened context, for Martinez In this counsel objec him. to state Martinez’ failure due to only four fight entire took argued that the clarity. States United with sufficient tion Tr. at three-quarter minutes. Cir.), to four (7th Briscoe, F.2d 4-B-95. denied, 111 S.Ct. U.S. cert. (1990); States 112 L.Ed.2d argues that if the appeal, On Cir.1991), (7th Canino, 928, 940 F.2d to treat permitted jury had been — U.S. -, denied, 112 S.Ct. cert. testimo- pre-trial and Glattfelder Williams (1992); Fed.R.Crim.P. L.Ed.2d 410 evidence, lapse ny as substantive applied, 52(a). of the standard Regardless used could the knife was during which time continues, the instruction Government significantly determined to have been prior statements proper because provided less was (and thus to have shorter consis rely are defendants intent). upon required to reach the opportunity testimony. trial I, with the parts: tent episode three into He breaks a human killing, the life of take to willfully inconsis- [ ] and the statement, statement in callous and being, to act an intent willfully declarant’s testimony, tent with the subject hu- given disregard under oath penalty wanton the consequences hearing, or other perjury aforethought aat not nec- proceed- does malice life; man but ing. ... or hatred to- will, ill spite, essarily imply 801(d)(1)(A). Fed.R.Civ.P. the individual killed.” wards "that malice district instructed 12. The aforethought at the time of a means an intent inconsistency, upon reason its Pro rate Federal Rules Criminal sufficiently assign objection find distinct party may as we that no provide
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1986);
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“that evidence offered for fight the duration of the ‘from purposes,” aware about ment nature you through objection. Although did time that first broke counsel quote particular portion the inmates until incident came to of Williams’ upon relied, testimony he nor elabo- an end....’] Portage wings, wing comprised 13. Unit is of two ers. l-B-7-9. cells Tr. at Each has 28 range. A-range designated as the A and B with 14 cells on each side of an 8 to 10 foot adjacent B-range, joined middle hallway. wide station, television and show- officer’s room Portage inside of you and talked it is tell, I think but hard to It is A. Unit? to three minutes two approximately range, approximately have been A. It must got I back down time a half to two minutes. one and B-range. hearing, suppression At the at l-B-28. Tr. questions following then read Counsel testified: Glattfelder hearing: pre-trial answers I and announced my body alarm A. I hit had fin- you point at which Q. ‘At the range. B This is Offi- fight on have a remaining inmates clearing ished Portage. It’s cer Glattfelder. hall, anything you see did out do then? Q. you did What taking that was assault further *14 the back down proceeded I A. place?’ near the the entrance range toward ‘No, sir.’ A. I knew re- because station officer’s you time do estimate Q. long a ‘How coming from would sponding staff it- the assault you had observed that need to di- and I would that direction going on?’ self there. rect them to 45 seconds say approximately ‘I’d A. arrive then? Q. And did staff minute, sir.’ a Yes, momentarily. It should have A. Tr. 2-A-141. less probably a matter been within inconsistency. an- There is no clear minute. than a when period the trial covered given at swer l-B-35. Tr. at scene, fol- immediate on the was Williams question here. Inconsistency is a closer other pushing the period of by a lowed one and one- testimony estimated The trial hall, the followed down inmates period from minutes for the to two half B-range. The second to return Williams’ of and to the arrival alarm Glattfelder’s hearing, esti- answer, pre-trial given at the the team of officers. with conversation the he “had observed only the time mated than testimony less estimated pre-trial on”, period was going a which itself assault (or alarm period from the minute the trial, but about at period asked within at the arrival Glattfelder’s possibly from period when latter also included It staff. entrance) of the the arrival down other inmates pushing Williams testimony pre-trial may that argued A-range. hall toward later slightly began period covered not hand, prosecutor did other On the it took Glattfelder (to the time extent pre-trial court that the district argue to inmates) and crowd of through the push Rather, he inconsistent. testimony was not (to the extent slightly earlier ended for im- stated, was offered “That evidence with Glattfelder team talked that time virtually a only....”, purposes peachment as cover- arrival). Even if construed after interpreted, at could be that it concession difference periods, the time ing identical inconsistent, least, and the district as than one minute. more could be no prosecutor. agreement with indicated it was error assuming that But even contends that this omis- Martinez further instruction, and to the the addition refuse was relevant from the sion instruction pre-trial Glattfelder that the Williams testimony, prior inconsistent Glattfelder’s could have inconsistent were answers rested objection Because counsel’s evidence, as well. we on as substantive been relied testimony, we review solely Williams’ on it We deem harmless. think the error applied instruct —as failure to the court’s on jury relied improbable that most testimony plain error. assessing to Glattfelder’s whether estimates these time —for was asked follow- At Glattfelder afore- with malice acted the defendants ing: and Garcia thought, whether trial, a Noel. At long did take acted concert Q. Okay. About how as to the testified body witnesses you your hit number of
from the time ques- night in on the place took response team came events that until alarm Tr. 2-B- minority groups. against hatred accounts taking the witnesses’ By tion. Noel’s offer rejected also The court consideration, could under- jury into derogatory made Brown had prove passed in must have the time stand that Sam- about minorities transpired. remarks to have these events order for suprem- a white he was had told Noel of mons description no doubt We have However, testimony Tr. 3-B-79. acist. persuasive more events was on the tattoos in that two of did come estimates and Glattfelder’s than Williams’ Tr. 3-A- body swastikas. were Sammons’ during the encoun- elapsed the time that pieces other Additionally, there were rejec- hold that Accordingly, we ter. import which of similar of evidence worked no proffered addendum tion The court would or struck. excluded any defendant. prejudice of Mr. testimony to the race permit the Victims’ Soria, of Evidence of inmate beaten Exclusion handcuffed C. Character, 4-A-44, testimony by Acts and Rac- Sammons, Prior nor Tr. Violent beating Affiliations him of Attitudes and told ist that Sammons Noel referring to the same minority, perhaps arguments are of the defendants’ Much incident. evidence of the exclusion of directed *15 racist views and Brown’s Sammons’ of Although additional evidence acts, di- many of which were past violent might acts be past violent the victims’ con- The defendants at minorities. rected cumulative, of the evi exclusion deemed racist views and vio- that the victims’ tend disposed be their racism cannot dence of significant minorities are toward lence carefully exam We have ground. on are and Garcia Martinez this case because exclusions, and deem challenged ined the are and Brown hispanics and Sammons every the details of unnecessary to discuss non-hispanic non-hispanicwhites. Noel is justified on rulings were Some of the one. white, of Martinez and Gar- the friend but foundation, hear grounds as lack of such cia. proper make a offer say, failure to or However, explicitly many were proof. bearing However, proof on substantial In in relevance. some on lack of based come in at past violence did the victims’ was, stances, relevancy theory of (Sam- that Hammer trial. Noel testified pos had Brown example, that because nickname) enjoyed reputation as a mons’ occasions, he, shanks on earlier sessed 3-B-31, people he fighter, Tr. and that the Noel, probably introduced rather than up inmates. Tr. hangs out with beat other Evidence offered to this encounter. shank testified that Sammons 3-B-32. Noel clearly inad theories was on that or similar of” Noel’s cellmate Mar- the shit out “beat of Federal the first sentence missible under Additionally, an officer tin. Tr. 3-B-31. 404(b). Evidence Rule of had presence that in his Sammons testified while in the face and back hit inmate Soria instances, theory may In some An- Tr. 4-A-44. was handcuffed. Soria traits of vio that the victims’ have been opinion testified that other officer as to racism were relevant lence and individual. Tr. 3-B-104. Brown is a violent acted in self-defense defendants whether that, Likewise, inmate testified in his another, there necessary defense of person. opinion, was a violent Sammons 404(a)(2) and under Rules fore admissible Tr. 3-B-139. Greschner, 405(b). v. See United States Cir.1981); (7th but see try- F.2d successful in Defendants were less Whalen, States ing the victims’ affiliations to show (7th Cir.1991). assuming rele Even organizations and that instances racist self-defense, could not exclusion minority persons. vance their violence involved prejudicial present in the circumstances. a mem- be Although admitted he was Brown 2-B-112, fight, Martinez Before Garcia entered Dirty Boys, Tr. ber of the White acting self-defense. objection may he well have been sustained an when Likewise, fight he such, entered the whether, espoused when Garcia he was asked passion person necessary cause a reasonable acting in defense may have been self-control act the moment lose Martinez, getting apparently was who La impulse and without reflection.” testified that he of it. Noel the worst Cf. 252; Fave, supra at United States Col grabbed fight after Brown entered (5th Cir.1982). lins, If 690 F.2d stage at that the neck and Martinez around defendants did not jury found that the necessary acting in de- may been he have self-control, adequacy provoca lose Any threat to Martinez Martinez. fense of and exclusion of tion would be irrelevant encounter, did not last. most clearly to it harmless. evidence relevant or near- and unconscious was down Brown Thus, found no we will assume well, on the floor Sammons was ly so. As adequate provocation, and consider resistance. This was offered little possible relevance of the excluded evidence assisting offi- things when the way provocation. adequacy as to the in- through the crowd of broke cers first circumstances, the immediate area the immediate mates and reached Under he repeated- provocation of Martinez was the blows Although the officers encounter. early fight. received from Sammons stop, the defendants ly them to ordered a reasonable objective test is whether attack, stabbing with Noel continued the person in the same circumstances would including the fa- many victims both times— If themselves lose control. the blows of Sammons—while tal wounds adequate, they ade- would would In addi- kicked and beat both. and Garcia person if known to be quate struck tion, testimony that Martinez there was motivated racism? violent and to be stabbing. Noel in the and Garcia assisted provocation of Garcia is his The immediate Assuming that the excluded evidence beating Martinez. observation of Sammons self-defense, have relevant to would been *16 enough not seeing If his friend beaten was prejudicial could not have been exclusion control, person lose to make a reasonable circumstances, there these where under person’s awareness of would a reasonable finding rational not have been a could dif- violence make a racism and Sammons’ self-defense. Likewise, that he Noel testified ference? Moreover, theory argued by a grab he saw Brown bystander was a when appeal, but not articulated defendants testimony, According to Noel’s Martinez. record, trial is that defendants’ on the pulled him off Martinez. hit he Brown of the victims’ traits violence awareness on Noel with Brown advanced When relevant to the defen and racism were hand, hit Brown and in Noel “pick” provoked mind when into dants’ state of (effectively re- him into the wall slammed passion. grounds heat of Where combat). dropped Brown moving him from ap readily are not admission of evidence According it. Noel recovered pick to his parent, counsel should alert the court Noel, just I lost it.... he then “kind of to to so is reason theory, and failure do little crazy.” Noel recalled going started confine enough appellate for the court to of Brown If his observations after that. plain error. States v. its review to reasonable enough to make a not 825, (7th Cir.), Peak, F.2d 832 cert. 856 control, would a reasonable person lose 499, 969, denied, 109 102 488 U.S. S.Ct. of Sammons’ person’s awareness (1988) (offer proof should L.Ed.2d 535 make a differ- violence Brown’s racism and significance of the exclud demonstrate ence? Rabideau, 821 testimony); Young v.
ed cited, and we have not parties have (7th Cir.), denied, 373, cert. F.2d found, dealing with this any decisions 98 L.Ed.2d 108 S.Ct. U.S. provocation general- issue. On or similar (1987) needs to alert the trial (proponent LaFave, Although at 255-64. ly, supra see issue). court to may painful infliction of violent blows LaFave, instructed, supra at provocation, adequate “Provoca- Judge As Shabaz aware- that a defendant’s passion], in order to be we doubt tion [of past violent of his adversaries’ might naturally ness adequate, must be such to evidence allowed type to and of rebuttal type of factors are racist motivation at 49-50 event, through in the door. Id. find it come any we In be considered. (3d Wigmore ed. (citing on Evidence the evidence excluded improbable most 1940)). permitted evidence is jury Inadmissible have caused case would this necessary remove “only the extent violence (which of the victims’ had evidence might prejudice which otherwise unfair it) a different conclusion. to reach before original evidence.” have ensued from appeal purposes Assuming for Winston, 447 F.2d error, harmless. United States it was there was omitted); (D.C.Cir.1971) (quotations Alternatively, the defendants con Johnson, see United States “opened the the Government tend that (7th Cir.1974), denied, 420 cert. of Sammons’ the issue door” to 95 S.Ct. 43 L.Ed.2d U.S. particular, the de Brown’s character. (1975) (doctrine admissibility of curative question posed rely upon fendants injec a rule for cannot be “subverted into During exami trial. direct Glattfelder prejudice”); Louisell generally tion of see nation, asked Glattfelder prosecutor Mueller, “open An supra, & at 61-64. any previous into “had ever run whether he give opponent unbridled door” does not Sammons.” Glatt- problems with Charles inadmissible license to introduce otherwise whatsoever”, and responded “none felder justify does it evidence into the nor as to Brown. The indicated the same also receipt merely evidence because of rebuttal per argue they were not defendants category of excludable it is the same testimony by placing this mitted rebut previously the evidence of evidence as and, prior before the act evidence Mueller, supra, fered. Louisell & therefore, inability introduce rebut their does not di Where the rebuttal evidence permitted a one- impermissibly tal evidence rectly previously the evidence contradict picture Sammons and Brown. sided received, beyond necessity of goes or “open the door” or “invited removing prejudice in the interest of fair provides pro that where a error” doctrine ness, it the district court’s discre is within evidence, a ponent introduces inadmissible deny tion to its admittance. Id. opponent to introduce may permit Here, testified that he did not Glattfelder similarly evidence rebuttal inadmissible experience problems victims otherwise-improper cross-ex engage Although the court’s past. *17 it was within may apply “open A court the amination. to rebut this discretion to allow evidence ing doctrine in order to neutralize the door” required testimony, the court was not to do any prejudice incurred from the or cure permitted only so. Inadmissible evidence is introduction of the evidence: any un- necessary to the extent to remove [Wjhere proponent’s inadmissible evi- the original prejudice resulting from the fair case or undercuts dence advances his only evidence. Glattfelder had been as- adversary, otherwise intro- that of his or signed Portage prior month to the Unit one trial, then in fair- prejudice duces to the light April to the 27 incident. In of this adversary should be allowed to ness the frame, testimony narrow time his that the the effect of this evi- try to neutralize victims were not carried lit- troublemakers any resulting prejudice by dence or cure weight unlikely prejudice to the tle and was introducing otherwise-inadmissible rebut- Moreover, jury defendants. the heard evi- impeaching propo- the tal evidence or (although dence of the victims' misconduct witness on cross-examination. nent’s may these instances not have been known Christopher B. 1 David W. Louisell & Muel- Glattfelder). preju- to In the absence of 11, (1977). ler, Federal Evidence at 49 dice, it the district court's dis- was within opponent may coun- extent to which contrary cretion to exclude evidence. ter with evidence is within the discretion of Testimony
the D. Admission of Williams’ Con- district court. cerning Hispanics of Two One doctrine, This referred to as “cura trial, by admissibility”, tempered tive the need Martinez and Garcia Prior place portion of Williams’ upon reasonable limits the amount moved to exclude
703 link in one “unfolding” of Sammons but from identi- arose This motion testimony. testimony pro- Williams’ suppression chain of events. at a testimony given fication hearing, jury’s under- At assistance vided some hearing prior to trial. fight he during sequence full events. standing that of the testified Williams trying to hispanics two it was Martinez or Regardless one of whether observed as Noel “open” Sammons, Sammons or the other “uncurl” unrolled Garcia who l-B-60, 61. Williams Tr. Moreover, him. stabbed face. kicking Brown was person was identify whether that could testimony not stand alone. did Williams’ and Garcia Martinez or Garcia. Martinez testimo- general depiction of Williams’ testi- portion of Williams’ that this argued testimony provided two ny corroborated in that it excluded mony should be testified that Margiotta Inmate inmates. jury to for the called because it irrelevant Sammons, Mar- it was stabbed while Noel coin” as “flip a “speculate” 2-A-55-56, down, Tr. at held him tinez who The court rea- Noel. assisted hispanic had Cummings testified that he Inmate while “important testimony was that the soned Garcia “roll- Martinez observed both understanding of events complete for a 2-A-157-58. ing” Tr. at Sammons. it provided that testimony be Martinez argument, his In support does, indeed, very nature of show the Collins, People 68 Cal.2d relies v. upon intent attack, show the and it does (1968) 497, 319, P.2d 33 Cal.Rptr. 66 438 {in 27. The dis- Tr. Defendants.”14 Transit, Inc., banc) Rapid v. and Smith motion, finding that court denied trict (1945). We 58 754 Mass. N.E.2d outweighed was not probative value Collins, persuasive. In to be find neither might incur. defendants prejudice the defendants, husband jury convicted Fed.R.Civ.P. robbery. At wife, degree second appeal that Williams’ argues on that, assuming cer- argued prosecutor speculate testimony required accused, there characteristics tain Sammons, it inmate uncurled to which overwhelming probability that anwas intent, and issue irrelevant .the matching by couple committed crime was “grossly” prejudicial. its inclusion was closing, characteristics. their distinctive determination district court’s “The probabili- prosecutor selected individual upheld un will be admissibility of evidence and invited purposes” for “illustrative ties clearly the court appears less factors. Col- apply their own jurors to discretion.” United States its abused n. lins, Cal.Rptr. at 500-01 & Cir.1992) (7th F.2d Tipton, theory, n. 10. 36-37 & Under P.2d at Covelli, (citing United States be but one there could infer that one could denied, Cir.), U.S. (7th cert. that defendants in 12 million chance (1984)). 83 L.Ed.2d 105 S.Ct. equally distinc- another and that innocent *18 having is evidence evidence Relevant robbery. the actually committed couple tive the existence of tendency to “any make P.2d at 37. 438 Id., Cal.Rptr. at 66 probable less probable or ... more fact of Califor- Court Supreme the appeal, On the evidence.” it would without than banc, prosecu- that the nia, sitting held gen evidence is 401. Fed.R.Evid. Relevant of mathematical and use tion’s introduction 402; see Fed.R.Evid. erally admissible. two funda- injected probability statistics York, 1351 States v. first, — because prejudicial errors: mental denied, U.S. -, (7th Cir.), cert. adequate founda- testimony lacked an (evidence the (1991) S.Ct. 321, 116 L.Ed.2d by prose- the tion, employed technique the probability that defendant increases that conjecture wild only lead Here, cutor to relevant). “could crime committed is- relevancy to the without demonstrated to his observations testified as Williams second, prosecu- the presented”; the sues during fight the comments about —his this ob- judge overruled The district objected and 2-A-118. Martinez At counsel for 14. jection well. as Tr. at for lack of foundation. to strike moved bits pick apart little asking you to not inject- improperly of this evidence tor’s use testimony. people’s of various jury pieces delibera- the into error fundamental ed that; this, believe believe jury the don’t “distracting] by Believe process tion weigh- here, this. don’t believe function over requisite this proper and its guilt... the issue on ing the evidence the you consider cu- ask that I would 502-03, P.2d at 38- Id., Cal.Rptr. at testimony of all of nature mulative it's all of that heard you’ve because that happened really what testimony tells alleged that she that Smith, plaintiff In people a lot of There were when she case. car this parked awith collided To saw differ- oncoming bus. Each one them by watching. an a road forced off might owned of them things. bus was Each one ent that establish defendant, presented watching slightly circumstan- different plaintiff a have been the bus demonstrating that any given point tial evidence of the assault area by a operated different been consider all time, you not have I should could and think granted a directed court put The line. trial event to bus of that recollections of their appeal, On defendant. for the happened. verdict picture what together of Massachusetts Court Supreme Judicial conclude that We cannot Tr. 4-B-112-13. because verdict the directed upheld testimony of Williams’ the introduction con- a matter of ownership of the bus prejudiced Martinez. Smith, N.E.2d at 755. jecture. enough that reasoned, “it a Argument Permit to E. Refusal fa- mathematically chances somewhat Early Release Expected Defendant’s proved.... to be proposition vor Probative Relationship are Family of the evidence can be said most that Intent Issue of Criminal on perhaps the mathemati- case is instant trial, the dis Prior to close proposition favor cal chances somewhat closing objections to addressed trict court the defendant caused bus the court Martinez informed arguments. (quo- enough.” Id. was not This accident. argue jury intended that he omitted). tations mandatory release his time to the short applicable to are not Collins Smith demonstrated date of December foremost, case neither First our case. kill. Tr. at 4- lacked the intent that he inadmis- at issue was the evidence held that vein, sought to Garcia In the same A-28. ar- relevancy grounds, counsel sible release date of jury that his argue to the Smith, the court concluded gues here. good time (applying November plain- presented by the that the evidence credits), mandatory release date his insufficient, its own—was standing on tiff— while three 21, 1992, marriage and his March Collins, court held that lack of intent to children demonstrated a intro- probability statistics mathematical his state was therefore relevant kill and prosecution inadmissible duced Tr. at the time of the incident. mind at proper foundation— they lacked because that such evi The court ruled 3-B-98. theory. and statistical in evidence both purposes dence, background admitted for Moreover, are also un- and Smith Collins on the argued not be only, could are not we faced persuasive because 4-A-33, intent. Tr. issue of evi- improper use of otherwise relevant contend Garcia Defendants case, *19 did the Government In our dence. erroneously preclud- that district evidence, the jury that this argue to not the jury that their arguing the from to own, ed them to con- its was sufficient standing on familial status dates and upcoming In release murder. re- for the defendants vict Garcia) to relevant the during (as to applied clos- to Martinez’ comments sponse essence, the defen- (Tr. 4-B-83-84), In question the Govern- of intent. ing arguments inmate who is an stated: dants’ contention that ment (and per- prison released from soon to be Well, certainly case is not our based alone_ child) would returning spouse and haps to a testimony I’m Mr. Williams’ v. Mechan 32; Brief, see United States freedom obtain ability to his jeopardize not 66, 73, 106 S.Ct. ik, U.S. is unlike- therefore killing another—and v. Dan (1986); States any kill. intent to L.Ed.2d the formed ly to have Cir.1988). He (7th a iels, is faced with case, a defendant criminal contributing supervisory our we exercise suggest circumstances unique set of does time of the the life at of enjoyment powers. her his or it be alleged crime—whether worst, agent’s use of the very At the life, employ- date, family release upcoming careless, any taint un- language sta- or social financial opportunities, ment should al- implications Unsupported likely. argu- could tus, considerations etc. These avoided, no see occasion but we ways be or she in- he to whether ably be relevant urge than to action supervisory other for logi- crime—because the to commit tended exercised. that care be activity an engage in cally one would reasons, judg- the foregoing For the her him cause potentially that would court are the district ments of Affirmed. This is valued. that which of deprived Additional- best, is, speculative. theory concurring. CUDAHY, Judge, reflection degree a of Circuit require ly, it would with defen- squarely inconsistent without some although not I agree, lost control they had that dants' contention I stand. doubts, verdicts should that these ruling district court’s actions. of their are there some separately because write discretion. abuse of not an manslaughter in- voluntary aspects of the comment. additional that merit struction Indictment for Dismissal Request F. instruct- been jury have How the should Unsupported Statement Because since vexing problem a presents ed Mafia Mexican with Involvement instruction an merely asked for defendants proceedings, grand jury theAt ordinarily an language, statutory using the fight. asked started grand juror what Specifically, request. unexceptionable there was special agent testified A containing an instruction was for request “Dirty White between blood” “bad a sudden statutory phrase “[u]pon In this con group. a Mexican Boys” and U.S.C. passion.” heat of quarrel or stated, text, special agent “[o]ne added). The 1112(a) (1992) (emphasis there’s Mexican Mafia them is enlightening histori- an pursuing majority, Although prose groups.” other these possibility analysis, cal entertains special from the testimony cutor elicited no may have quarrel” sudden “upon a speculative, testimony was this agent that from apart context in the modern meaning jury to grand admonish did not he pas- “heat of saying way of being another advise the testimony, nor this disregard at 696. Ante sion.” Martinez draw inference jury not to images Mafia. At up Mexican summons passion” was member “Heat of reference to arriving made no the Government husband cuckolded of the moved Martinez Mexican Mafia. lover wife find bedroom fla- indictment, arguing that quarrel” “Upon dismissal a sudden grante delicto. Mafia was referent, Mexican the reference but well-known such has no denied his judge case, The district a much prejudicial. suggests majority disputants motion. whose armed age, of earlier unneces- it is I think flair. But tempers attention to calls our appeal, On without phrase is sary hold Mafia, with- Mexican reference this con- recent in a more its meaning own a member he was proof that out the stereo- Perhaps, consistent text. many are “that there concedes group. He killing, we should passion type of pet- legally sustainable holding that a cases confronting each other gunslingers imagine purges whatever guilt verdict *20 the virtue over Street middle of Main in process may be in taint there has encounter lady. an Such a local returned.” Martinez’ the indictment not, however, self-defense, and the tion. This does seem be some overtones fear, fact, rapidly giving the “sudden accompanying as well as of such a case. enmity, surging anger pro- that could mislead the quarrel” instruction here could pre- kill. person Therefore, voke a reasonable I that the district jury. believe quarrel might in a sudden vailing emotion justified declining give in such court was passion in to a heat of be fear contrast an instruction. jealousy envy and are fre- situation where quently key.
But, gunslinging if a encounter is guess quarrel at what a sudden
accurate dress, like in
might look “modern” to fit the mold.
present facts do not seem fight deadly with a
Here we have fist fray later.
weapon introduced into the quarrel, it sudden? This is no doubt a but is FREEMAN UNITED COAL MINING me the suddenness with It seems to COMPANY, Petitioner, potential fight which a flairs into homicide narrowly and must construed critical WORKERS’ OFFICE OF COMPENSA- very quarrel” if “sudden is not to become a Jones, Fairy Dell TION PROGRAM broadly applicable defense homicide Jones, Respon- widow of Donald L. Nevertheless, cases.1 I would be cautious dents. majority’s speculation about garb “upon quarrel” may modern a sudden No. 92-1992. meaning have “in the the same as Appeals, United States Court
passion.” I do not believe that the two Circuit. Seventh phrases meaning have the same nor would good deleting “upon this be a reason for Argued Feb. 1993. quarrel” sudden instructions Decided March 1993. manslaughter generally cases. April As Corrected quarrel” pas- A “heat “sudden categories provocation sion” are two present recognizes
that the federal statute mitigating what would otherwise noted, majority suggests
murder. As categories may really these two be the agree
same: “Other states that the ‘sudden
quarrel’ type provocation causing is a passion.”
one to act heat out me, however,
Ante at 695. To it is not so quarrel may
much that a sudden arouse a combatants, passion
kind of heat of certain, admittedly infrequent,
but
quarrels2 provo- are themselves sufficient manslaughter.
cation reduce murder flair-up
There are circumstances where the quarrel rapid a sudden is so and over-
whelming provide as to a defense and re-
quire prosecu- an instruction in a homicide original by majority Whether the defendant is one of the appel- 2. The cases cited use the per combatants or an intervenor should not be lation “mutual combat.” Ante at 695. se determinative. The suddenness with which one becomes involved in an armed skirmish is key.