United States v. Ronald Keiser, Jr.United States v. Ronald Keiser, Jr.
Ronald Reiser shot Victor Romero, paralyzing him from the waist down. The shooting occurred inside the boundaries of Fort Peck Indian Reservation in Montana. Reiser was indicted and convicted of violating
The district court had jurisdiction under
I.
The regrettable events giving rise to this prosecution occurred early in the morning of December 19, 1992, in Wolf Point, Montana. A group of people gathered at a home across the street from the home of the defendant, Ronald Reiser. The gathering was raucous. Members of the group had been drinking at various bars and the drinking apparently was continuing at the after-hours party.
Reiser went across the street to complain about the party. Testimony regarding the details of what happened next is conflicting, but it appears that several arguments ensued. Reiser may have slapped a woman; a scuffle began; a guest tried to throw Reiser out of the house; Reiser pulled a chunk of hair out of the head of one of the guests.
Reiser then returned home and was quite upset. His girlfriend was unable to calm him down, so she called the defendant’s brother, Randy Reiser, to come over. Randy came and was successful in calming the defendant down. Randy then left the defendant’s house and returned to his pickup truck, which was parked on the street between the two houses.
At around the same time as Randy was leaving, however, Victor Romero, the brother of the girl whom the defendant allegedly slapped, arrived at the house across the street. Angered that someone had slapped his sister, Romero set off across the street with two companions. En route, they encountered Randy, the brother of the defendant, sitting in his pickup truck as it warmed up. Romero saw Randy in the truck and, thinking it was Randy who had slapped his sister, began hitting and shoving Randy, who was still sitting in the driver’s seat of his truck.
The defendant watched these events from inside his house. He testified that he saw one of the two men who were with Romero remove a gun from the back of a parked Ford Escort station wagon, place it in the back of his pants, and head in Randy’s direction. 1 He therefore feared the three men were about to kill his brother. Ronald retrieved a rifle from his bedroom. When he saw what he thought was a gun being used in the assault on his brother, he shot at the people by the truck, hitting Romero.
The bullet passed through Romero’s kidney, colon, and small intestine, and lodged in his spine. Romero is now paralyzed from the waist down, and uses a wheelchair and a colostomy bag.
Reiser was arrested four days later and indicted on the charge of violating
During the second day of trial, the defense called the defendant’s brother, Randy Reiser. Defense counsel began to ask Randy about an incident that had occurred the day prior in the lobby outside the courtroom. The prosecutor objected to the line of questioning as irrelevant and the court sustained the objection.
Counsel then approached the bench and defense counsel made an offer of proof:
My purpose in this was not — yesterday afternoon Victor Romero [the victim] was with his family and fliends in the presence of court security. He looked at this witness and he said words to the effect, there he is, that’s the fucker’s brother. And Iwant you to remember his face, remember his face.
And he had to be taken out of there, he was screaming. I think that’s indicative of he wanted to get revenge, it is indicative of his actions on the night in question. This is not the sympathetic individual that comes in here and says he was very calm and collected. And I think it is indicative of his state of mind now and his state of mind at the time. I think it is relevant.
Tr. of May 11, 1993, at 271-72. The court again sustained the objection. Reiser was convicted on May 11, 1993 and is incarcerated for a term of 71 months.
II.
Reiser argues that the district court committed reversible error in giving a jury instruction regarding self-defense different than the one Reiser proposed. We reject this argument and hold that the district court’s reading of Ninth Circuit Model Criminal Instruction 6.05 adequately informed the jury of Reiser’s theory of the case.
Cf. United States v. Goland,
“[TJhere is some dispute over the appropriate standard of review when a trial court rejects certain types of proposed jury instructions.”
United States v. Dinkane,
The defense introduced evidence that one of the men who was involved in the assault against the defendant’s brother had, prior to approaching the brother, reached into the back of a ear, removed a metal object, and placed it in the small of his back. The defendant testified that he thought he saw one of the men pulling a handgun out of the car and walking toward his brother with it. 2 Not surprisingly, the prosecution denied that anyone had removed a gun from the back of the car. Instead, it presented evidence indicating that the man had grabbed a few beers from the back of the car. 3
After the shooting, the investigating officers performed a cursory search for a gun. They found none. Reiser argues on appeal that the failure to find any gun “obviously gives rise to evidence from which the finder of fact could have believed that the Defendant was mistaken in his belief that his brother’s assailants were armed.” He therefore requested at trial a jury instruction emphasizing that even a mistaken belief in the necessity of force can support a claim of self-defense or defense of another.
The defense offered the following instruction:
You are to consider the following requirements of the law in determining whether the use of force claimed by defendant was justified:
1. The defendant must not be the aggressor;
2. The danger of harm must be a present one;
3. The force threatened must be unlawful;
4. The defendant must actually believe the danger exists, that is, use of forceby Mm is necessary to avert the danger and that the kind and amount of force wMch defendant uses is necessary;
5. The defendant’s belief, in each of the aspects described, is reasonable even if mistaken.
You are further advised that even if you determine the use of force by defendant was not justified, the government still has the duty to prove each of the elements of the crime charged beyond a reasonable doubt.
Docket Entry No. 28.
The district court, without significant explanation, refused to give tMs instruction. Tr. of May 11, 1993, at 320 (“I think I want to give the Ninth Circuit one.... I’m giving the Ninth Circuit one.”). Rather, it gave the model instruction on self-defense:
The defendant has offered evidence of having acted in self-defense. Use of force is justified when a person reasonably believes that it is necessary for the defense of oneself or another against the immediate use of unlawful force. However, a person must use no more force than appears reasonably necessary in the circumstances.
Force likely to cause death or great bodily harm is justified in self-defense only if a person reasonably believes that such force is necessary to prevent death or great bodily harm.
Tr. of May 11, 1993, at 335. The court also instructed the jury that the prosecution bore the burden of proving beyond a reasonable doubt that the defendant had not acted in reasonable self-defense. Id. at 331 (“the government must prove each of the following elements beyond a reasonable doubt: ... the defendant did not reasonably believe that force was necessary to defend against an immediate use of unlawful force, or the defendant used more force than was reasonably necessary in the circumstances”). 4
We have found no opimon expressly approving or disapproving this model instruction. As a general matter, however, a district court need not accept the precise words proposed by an accused,
United States v. Lopez-Alvarez,
Furthermore, a district court may “refuse an instruction if its language gives undue emphasis to defendant’s version of the facts ... or if it would tend to influence the jury toward accepting the defendant’s version of the facts.”
United States v. Goland,
The model instruction adequately allowed the jury to find that the government had not met its burden of showing that the defendant did not reasonably act in defense of his brother. The instruction does not
III.
Reiser’s only defense in this case was that he was justified in shooting into the muster because he was acting in defense of his brother, whom Romero was assaulting at the time of the shooting. Reiser sought to introduce testimony about this incident outside the courtroom in order to bolster his self-defense claim. He argues on appeal that the incident “tend[s] to show the character of Mr. Romero for anger and violence.” Admission of Randy Reiser’s testimony regarding the incident would have “show[n] the jury the true nature of the ‘victim.’ ” The government responds that the testimony “would have added absolutely nothing material to the trial,” because “the appellant did not personally know the victim, nor did he therefore have personal knowledge of the victim[’]s character.” We think that neither party has properly addressed the legal questions this proffered testimony raises. 6
The question whether defendants may introduce specific violent or aggressive acts of the victim in order to bolster a claim of self-defense has begotten a host of written opinions, both in the federal courts and in state courts interpreting analogs to the Federal Rules of Evidence. The analytic approaches, as well as the answers these approaches have yielded, are myriad. Some courts have reasoned that a victim’s violent nature is an essential element of a claim of self-defense and that defendants should therefore be allowed to introduce evidence of specific acts in order to prove that character.
7
Some have concluded that the victim’s violent nature is not essential to the claim of self-defense, and therefore limit the defendant to the use of reputation or opinion evidence to show the victim’s character for violence.
8
Others, on the other hand, have refused to admit specific acts on the rationale that their use would be circumstantial rather than direct.
9
Oth
Our task, therefore, is not simple. It is made significantly easier, however, by clarification of what this case is not about. Reiser makes no claim on appeal that the incident outside the courtroom — which obviously occurred after the shooting — was relevant to his state of mind at the time of the shooting or the reasonableness of his belief that force in self-defense was necessary. Thus, we need not, and do not, reach the question whether specific acts are admissible to bolster the assertion that the defendant’s belief in the need for force was reasonable. Instead, we need only decide whether testimony regarding this incident should have been admitted as character evidence, ie., as evidence from which the jury could infer that the victim, at the time of the shooting, was likely to be behaving in accordance with his violent character.
Put another way, introduction of specific acts as victim character evidence would support the proposition that the victim was in fact using unlawful force, where as introduction of specific acts to prove the defendant’s state of mind would support the proposition that the defendant’s belief that force was necessary was reasonable. These two propositions are separate elements of the defense of self-defense or defense of another.
13
Cf. Bland,
A. Relevance of the excluded testimony
The Federal Rules of Evidence provide an exception to the general rule against character evidence as propensity evidence in the case of “[e]videnee of a pertinent trait of character of the victim of the crime offered by an accused.”
Thus, whether Romero is a violent and angry person is certainly relevant to the defendant’s claim that he was acting in defense of his brother. Romero’s violent character makes it more likely that his behavior on the night of the shooting was violent— which supports the defendant’s defense that he was shooting to protect his brother — than it would be if Romero were peaceable.
The government, however, argues that because the incident occurred
after
the shoot
This argument misapprehends the purpose of presenting testimony regarding the victim’s character.
The structure of the rule supports this conclusion.
Furthermore, a smattering of federal cases indirectly supports the contention that the relevance of victim character in an assault case stems from its making it more likely that the victim was in fact using unlawful force — a proposition that, if true, would give rise to the defendant’s justified use of force— rather than its bearing on the defendant’s state of mind. These cases show that whether the defendant knew of the victim’s character does not affect the relevance of the evidence. For instance, the Court of Appeals for the Tenth Circuit, in
Perrin v. Anderson,
B. Form of the excluded testimony
Despite its relevance, the testimony regarding the altercation outside the courtroom was properly excluded. Under the Federal Rules of Evidence, only reputation or opinion evidence is proper to show that the victim of an assault had a propensity toward violence. The excluded testimony, on the other hand, would have constituted paradigmatic “specific act” evidence.
After a court determines that character evidence is admissible under
Methods of Proving Character
(a) Reputation or opinion
In all cases in which evidence of character or a trait of character of a person is admissible, proof may be made by testimony as to reputation or by testimony in the form of an opinion....
(b) Specific instances of conduct
In cases in which character or a trait of character of a person is an essential element of a charge, claim, or defense, proof may also be made of specific instances of that person’s conduct.
No published opinion of this Court has addressed whether
The language of the rule states in straightforward manner that evidence of specific instances of conduct may only be made when a person’s character is “an essential element of a ... defense.”
16
Some courts have analyzed particular efforts to introduce specific act evidence to determine whether character is, as the rule states, an “essential element.”
E.g., Piche,
In contrast to these other courts, we find that reliance on the advisory committee’s note to
Thus, the distinction that the
Our object in this case, therefore, is to determine whether Romero’s violent character is an “essential element” of Reiser’s defense. We conclude, by reference to the model instruction we expressly approved in Part II, that Romero’s violent character does not constitute an essential element of Reiser’s claim that the shooting was justified because he was acting in defense of his brother. Even had Reiser proven that Romero is a violent person, the jury would still have been free to decide that Romero was not using or about to use unlawful force, or that the force Romero was using was not likely to cause death or great bodily harm, or that Reiser did not reasonably believe force was necessary, or that he used more force than appeared reasonably necessary. On the other hand, a successful defense in no way depended on Reiser’s being able to show that the Romero has a propensity toward violence. A defendant could, for example, successfully assert a claim of self-defense against an avowed pacifist, so long as the jury agrees that the defendant reasonably believed unlawful force was about to be used against him. Thus, even though relevant, Romero’s character is not an essential element of Reiser’s defense.
Cf. Alexander,
Thus, exclusion of the proffered testimony regarding the verbal altercation outside the courtroom was proper because the victim’s violent nature is not essential to a successful claim of self-defense. Reiser’s claim of self-defense neither rises nor falls on his success in proving that Romero has a penchant for violent outbursts. Thus, Reiser had no right to introduce evidence of the incident outside the courtroom to buttress his defense. We therefore affirm the district court’s exclusion of the testimony.
IV.
In sum, we hold that the district court properly excluded testimony regarding Romero’s outburst outside the courtroom, and that the district court did not err in giving the model instruction on self-defense. Reiser’s conviction is
AFFIRMED.
Notes
. This man turned out to be George Whetsit, who testified that he had actually removed a "half rack” of beer from the parked car.
. Tr. of May 11, 1993, at 289 (testimony of Ronald Keiser) ("No, I'm almost quite certain it was a gun. The way he handled it, the way he put it in the back of his pants. He didn't put it in an inside pocket, he put it in the back of his back.").
. See, e.g., Tr. of May 10, 1993, at 111 (testimony of George Whetsit, Jr.) (“I went to the back end of the car and grabbed a half rack of beer.").
. The court was proper to shift the burden on self-defense. Once a defendant has introduced evidence of self-defense, the burden shifts to the government to disprove it beyond a reasonable doubt. See United States v. Jackson, 726 F.2d 1466, 1469 (9th Cir.1984).
. We acknowledge that some commentators have recommended an instruction specifically stating that a belief may be reasonable even if mistaken in cases in which the defendant used self-defense as a result of a misapprehension. See Leonard B. Sand et al., 1 Modem Federal Jury Instructions, ¶ 8.08, at 8-60 (1994). We decline, however, to mandate such an instruction.
. This Court generally reviews evidentiary rulings for an abuse of discretion.
United States v. Blaylock,
.
E.g., Gottschalk v. State,
.
E.g., State v. Smith,
.
E.g., United States v. Talamante,
.
E.g., State v. Cano,
.
People v. Boles,
.
Green v. State,
. Presumably, however, proof that the victim was in fact using unlawful force would be highly probative that the defendant's belief in the necessity for force was reasonable.
. The court did hold, however, that the form of some of the evidence had been improper. Furthermore,
Perrin
was a § 1983 case against officers who had killed an arrestee, rather than a criminal case. This distinction is of little moment, however. The court held that because "[a] verdict against the defendants in this case would be tantamount to finding that they killed Perrin without cause,” the defendants could invoke the exceptions to the general rule against character evidence.
Perrin,
.
But see Boles,
. The advisory committee’s note explains the rationale for this limitation: "Of the three methods of proving character provided by the rule, evidence of specific instances of conduct is the most convincing. At the same time, it possesses the greatest capacity to arouse prejudice, to confuse, to surprise, and to consume time.”
. A case from the Court of Appeals for the Eighth Circuit could be read establish a third approach. In
United States v. Waloke,
. The tendency of courts to discuss whether the evidence is circumstantial or direct, rather than whether character is an essential element of the claim or defense, may also stem from a distinction made in the McCormick treatise, which differentiates between circumstances in which character is "in issue,” see McCormick § 187 (concluding that such evidence is generally admissible), and those in which character is used as "circumstantial evidence.” See McCormick § 188 (concluding that such evidence is generally inadmissible).
. The inquiry into whether character is an essential element and whether the use of the evidence would be circumstantial are similar. Some courts, in fact, appear to apply both tests without acknowledging their analytic differences. The Tenth Circuit case
Perrin v. Anderson,
for example, reasons that character is an essential element "when it is 'a material fact that under the substantive law determines rights and liabilities of the parties.' "
. In the case of a tort or contract question, the court would look to an authoritative statutory or common law statement of the elements of the prima facie case and defenses. Similarly, with respect to a crime, the court would look to the indictment or an authoritative statement of the claimed defense. The inquiry would be legal rather than factual, categorical rather than particular to the case at hand.
.
But see Thompson,