UNITED STATES of America, Plaintiff-Appellee, v. Henry Peter WOODY, Jr., Defendant-Appellant. United States of America, Plaintiff-Appellee, v. Larry Woody, Defendant-Appellant.
Nos. 06-2100, 06-2104
United States Court of Appeals, Tenth Circuit
Oct. 12, 2007
250 Fed. Appx. 867
Phillip P. Medrano, Office of the Federal Public Defender, Scott M. Davidson, Albuquerque, NM, for Defendant-Appellant.
Before KELLY, Circuit Judge, McWILLIAMS, Senior Circuit Judge, and O‘BRIEN, Circuit Judge.
ORDER AND JUDGMENT*
PER CURIAM.
In these consolidated appeals, Defendants-Appellants Henry Peter Woody, Jr., and Larry Woody (collectively “Defendants,” individually “Henry” and “Larry“) appeal from their convictions for second-degree murder in violation of
Defendants challenge their convictions on four grounds: (1) Larry argues there was insufficient evidence adduced at trial to support his conviction; (2) both Henry and Larry argue evidence was admitted at trial in violation of Fed.R.Evid. 401 and 403; (3) Larry challenges several of the prosecutor‘s remarks made during closing arguments; and (4) Henry argues the district court erroneously imposed a special condition on his supervised release without giving prior notice pursuant to
I. Background
In the early morning hours of April 26, 2004, Kenneth Tutt‘s body was discovered under a tree behind the City Market in Shiprock, New Mexico. The area in which Tutt‘s body was discovered is known to be frequented by transients. It was later determined that the cause of Tutt‘s death was a stab wound to the left side of his neck.
Because we must review the record for sufficiency of the evidence in Larry‘s appeal and for the admission of unfairly prejudicial evidence in Henry‘s appeal, we recount in some detail the pertinent portions of the trial testimony. Prosecution witness, Officer Brenda Harrison with the Navajo Nation Department of Law Enforcement, was the first officer to arrive on scene after Tutt‘s body was discovered on April 26. She observed a pair of broken sunglasses and a baseball cap near the body. She also observed blood splatters on the tree branches near Tutt‘s head. She and another officer did not locate any other evidence in the area surrounding the crime scene. Harrison also testified she was familiar with Defendants prior to Tutt‘s death and both of them usually carried backpacks. At some point during the investigation of the crime scene, the authorities received information from Nelvis Dawes, a man who resided between 100 and 200 yards from where Tutt‘s body was found, that led them to focus their attention on Defendants. The information gleaned from Dawes also led police to the property of Barbara Litson for the purpose of searching a shack occupied by Paul Hayes, Jr. At around 11:00 a.m., the authorities received permission from Litson to search the shack, and, based on something they found during the search, the shack was secured until a search warrant could be obtained.
George Joe, the individual who called law enforcement to report the discovery of Tutt‘s body, testified next. He explained a friend had informed him there was a body behind the City Market. Joe also testified that he had known Defendants for three or four years and had seen them in the vicinity of the City Market in the early afternoon on April 25. He described how Larry typically wore blue jeans, tennis shoes, sunglasses that fold over the eyes, and a cap. Henry typically wore square sunglasses, a light blue jacket, blue jeans, and tennis shoes. Later, during cross-examination, Joe confirmed Henry was wearing a light blue windbreaker on April 25, the day before the body was discovered.
Phillip Joe, the second law enforcement officer to arrive on scene after Tutt‘s body was discovered, testified to observing broken wrap-around style sunglasses near the victim and described the general area around the body as “somewhat trashy.” (R. Vol. IX at 59.) He explained the Hayes shack was located right next to the street and was “pretty simply put together with numerous rough material, lumber, bark wood, plywood, and the front of the shed was or the entrance was unsecured.” (Id. at 67.) Hayes was not in the shack at the time of the search. Next, Officer Joe detailed how he searched the shack and discovered what appeared to be a bloody steak knife within a cupboard. On redirect examination, Officer Joe testified that, at the time of the search, he also noticed a portion of a blue jacket with reflective tape on it stuck behind a mattress. Later in the trial, Officer Joe claimed a jacket seized from Henry following his arrest was similar to the blue jacket he had seen in the shack on April 26.
Litson was called next and testified that when she returned home from Las Vegas, Nevada, on the evening of April 25, nobody was at the shack. She confirmed, however, that sometime before 10:00 a.m. on the morning of April 26 she saw Defendants walking near the shack and both were holding bags.
Dawes was next. He said Defendants had been in the Shiprock area in the month and a half preceding Tutt‘s death. He observed the following on the evening of April 25:
And I seen a bunch of people walking as a group, and there was this one individual that they were kicking, and he kept falling down. He would get up, and they would kick him again. And then the taller one would eventually help him up, and it seems like he was getting his hits in at the same time, too. And he would get up again, and he would kick him down again. And finally, they just kept on doing that, and they just kept on walking.
(R. Vol. X at 165.) Dawes recalled a total of six individuals in the group—the victim of the beatings, the two individuals inflicting blows, and three observers who were just following. He thought nothing of the incident because fights happen all the time in that area of Shiprock; he turned away to return to his work. When he looked outside again a half an hour later, he saw nothing. Dawes identified Henry as the individual kicking the victim and Larry as the individual hitting the victim, but did not testify he ever observed a weapon in the hands of either. When the prosecution showed Dawes the shirt Tutt was found wearing when his body was discovered on April 26, Dawes confirmed the victim of the beatings he observed was wearing the same shirt. On cross-examination, Dawes admitted the only way he even recognized Larry was by his height, and claimed that Larry was hitting the victim with only his right hand.
Next, the government called four expert witnesses to discuss the scientific evidence (or lack thereof). First, Sandra Koch, a forensic examiner in the trace evidence (hairs and fibers) unit of the FBI, testified she could not match any hairs from Tutt to those found on the items seized from Henry‘s backpack. Lora J. Gioeni, a forensic examiner in the mitochondrial DNA unit at the FBI, testified that, based on DNA testing, Tutt could be excluded as a possible source of a hair found on Henry‘s backpack. Julie Ann Kidd, a DNA and serology (the study of bodily fluids) examiner with the FBI, testified she performed DNA testing on Henry‘s boots, a jacket, a pair of pants, a t-shirt, and a backpack. Tutt‘s DNA was not found on any of these items. Nor was either Defendants’ DNA found under Tutt‘s fingernails. DNA extracted from blood found on the handle and blade of the knife located in Hayes‘s shack matched Tutt‘s DNA to a reasonable degree of scientific certainty but no latent fingerprints—from Defendants or anyone else—were found on the knife.
The government‘s final scientific expert was Dr. Jeffrey Nine, the forensic pathologist who performed an autopsy on Tutt. According to Dr. Nine, Tutt‘s blood-alcohol level was .142 at the time of his death. Dr. Nine testified the cause of death was a stab wound “on the left side of the neck
The next witness for the government was Paul Hayes who was not an eager witness. The government secured his presence by arrest for failing to comply with a subpoena. When he was called as a witness, prior to any questioning, the trial court addressed Hayes as follows: “Now, you have been given the oath, and you have promised to tell the truth. Do you understand that?” (R. Vol. XI at 329.) No other witness was addressed in this manner.
Hayes began his testimony by explaining that on April 25, 2004, he was living in the shack on Litson‘s property, but did not see Defendants that afternoon. He went on to testify: (1) he spent the night in the shack on April 25th but did not remember seeing either Henry or Larry; (2) his father and a female friend also spent the night at the shack on April 25, but they left the next morning around 7:00 or 8:00 a.m.; and (3) he did not see Defendants in the morning either. He then offered this description of the shack:
I can tell you this. Over at my dad‘s house, we have no door. We use a curtain for a door. And on the other side is a car hood, and we chain it up, and then we leave. Sometimes we come back, and the door‘s already opened again.
(Id. at 340.)
Hayes was interviewed by FBI Agent William Hall on April 29, three days after Tutt‘s body was discovered. When Hayes testified he could not remember what he said to Agent Hall, the court allowed him to silently read Hall‘s report to refresh his memory. Due to a concern Hayes may have difficulty reading the report in English, the court called a translator to read the report to Hayes in Navajo.1 After Hayes stated he understood the substance of the report, the government renewed its questioning as follows:
Q: And this is a statement that you gave to Mr. Hall and Mr. Deale at the BIA office, do you recollect that?
A: Yes.
....
Q: Okay. Now ... I‘m going to ask you about the statement at the bottom ... of Page 1, the last sentence. Do you remember making that statement?
A. No.
Q. Do you remember the agent asking you about Henry Woody?
A. No.
Q. Okay. Do you remember telling the agent that Henry Woody stutters when he gets scared?
....
Q: Do you remember telling the agent that you saw Henry Woody two days after Mr. Tutt‘s death, on the 28th?
A: No.
Q: And do you remember telling him that Henry Woody told you not to say anything?
A: No.
Q: You don‘t remember that?
A: No.
Q: Do you remember telling me this morning that when Henry Woody gets nervous, that he stutters?
A: No.
Q: Do you remember talking to me downstairs this morning about 7:30 a.m....?
A: Yes.
Q: But you don‘t remember telling me that?
A: No.
(R. Vol. XI at 347-48.) The court then intervened (with the jury present)2:
The Court: Mr. Hayes, do you understand the questions that the lawyer is asking you?
The Witness: No.
The Court: Look at me when I talk to you. You took an oath this morning to tell the truth. Do you understand that?
....
The Court: You swore to tell the truth, you promised to tell the truth as to all questions that ... would be asked.
The Witness: Yes.
The Court: I have concerns that you are not honoring ... that oath. Mr. Hayes, what is it about the questions that you do not understand? Tell me.
The Witness: I understand everything. There‘s some things that‘s written there. I don‘t think I said those things.
(Id. at 349.) When further questioning received the same type of response, the jury was sent on break. The court again admonished Hayes regarding his evasiveness and warned he was treading close to contempt.
Still outside the presence of the jury, the government suggested Hayes was afraid of the Defendants and his fear was the source of his contrived lack of memory. The court questioned Hayes regarding this suggestion, but Hayes denied being afraid or receiving any threats from the Defendants. Henry objected to the form of the government‘s questioning. The court responded to the prosecutor, “I do have concern with the amount of detail here that you are noting, [counsel], with respect to the substance of the statements that you have.” (Id.) The prosecution replied, “Your Honor, just so the Court is aware, the reason I‘m doing or going into detail because my intention is to call Agent Hall and get these [statements in] under the Rules of Evidence ... prior inconsistent [statements]....” (Id.) There was no further discussion and the jury returned to the courtroom.
The questioning resumed in the same form. After several minutes, the court spoke to the jury, stating:
(Id. at 360-361.) Eventually, the government reached the point where it tried to elicit Hayes‘s reported statement to Agent Hall describing the Defendants’ conduct when they drink or get angry. It inartfully asked, “And what, in fact, did you tell the agent about Larry Woody when they [sic] get mad?” (Id. at 363.) Henry objected alleging the statement was irrelevant and unduly prejudicial under
Q Now, so when you made this statement about how they act when they get mad, what made you tell the agent that?
A Well, like I said, what Larry does is when he gets mad and then when we try to joke around, he just gets mad and hits me or some other people there. Then he hits them, too.
Q. And then did you tell the agent that he talked about killing people when he gets mad?
A. That, I don‘t remember.
(Id. at 366.)3
Agent Hall was the government‘s final witness. Assigned to investigate Tutt‘s murder, Hall responded to the crime scene early on April 26 and at approximately 11:00 a.m. he was informed of the search of Hayes‘s shack and the discovery of the bloody knife. In response, he prepared a search warrant and affidavit, and after obtaining a search warrant, seized the knife. He next described how he interviewed Henry in Cortez, Colorado, a couple of weeks after the murder. During that interview, Henry claimed he had heard about Tutt‘s death on the radio and then spontaneously volunteered, “I‘m innocent. I don‘t even know that guy.” (Id. at 88 (quotations omitted)). Henry later referred to Tutt as Ken, leading Agent Hall to believe Henry had indeed known Tutt.
Henry eventually admitted to Agent Hall during the interview that on April 25 he had been drinking with Tutt behind the City Market. With regard to the moment when Tutt was stabbed, Henry advised Hall, “he got up and bent over, and it happened really fast.” (Id. at 390.) Henry claimed that after the stabbing he went back to Hayes‘s shack and fell asleep. Henry described the murder weapon “as a fixed blade hunting style knife with a four-inch blade [and] a black handle.” (Id. at 391.)
Agent Hall detailed two interviews he conducted with Larry, during which Larry also admitted to being with Tutt on the day he was slain. Larry claimed that on April 25 he encountered Tutt, who requested that Larry go into the City Market and purchase some “ocean”4 for them
The government then moved to Hayes‘s statements to Hall regarding Defendants’ propensity for violence when drinking. Because Hayes denied making the statements, the government was allowed to elicit impeachment testimony from Agent Hall. Hall testified Hayes told him, “[When Henry and Larry] get mad, they talk about killing people” and [Hayes] went on to say, “When they get together and drink, they also threaten people.” (Id. at 402.) When the jury returned from lunch, the court properly instructed the jury that such evidence was admissible only to impeach the credibility of the witness and not to establish the truth of Hayes‘s statements.
On cross-examination, Hall testified that, at the time of his first interview with Larry on April 28, Larry‘s right hand was extremely swollen (his fingers were twice the normal diameter) and he had sutures on one of his fingers. Larry told Hall he had surgery on his right hand in early April, a fact Hall independently corroborated through medical records. Hall admitted he had previously testified before a grand jury saying: “It‘s my belief, based on what I saw of Larry Woody‘s hand, that he could not have stabbed someone.” (Id. at 422 (quotations omitted).) After evaluating the crime scene, Hall believed the assailant was right-handed and Larry would not have been able to make a fist without injuring the surgery wound. Hall further testified that, during a prior investigative interview, Dawes had said four of the five men he saw on April 25 were kicking Tutt, but that one individual—who was wearing a blue jacket, black pants, and black plastic wrap-around sunglasses—did most of the pushing and kicking.
At the conclusion of Hall‘s testimony, the government rested and Defendants moved for judgments of acquittal. The judge denied the motions, finding sufficient evidence as to each element of the charged offenses. The Defendants chose not to put on any evidence. Following jury instructions and closing arguments, the case was submitted to the jury.
Larry now argues the government presented insufficient evidence from which a reasonable jury could find he caused Tutt‘s death. Larry also takes issue with several of the prosecutor‘s statements made during closing argument, including one suggesting he might have enjoyed killing the victim “in a primitive and human recreational kind of way thinking that he would never be in front of you guys [the jury].” (R. Vol. XII at 486.) Both Larry and Henry contend the district court committed reversible error when it allowed the prosecutor to question Hayes and Agent Hall regarding Hayes‘s prior statements that the Defendants get violent and threaten to kill people when drinking and angry. Finally, Henry argues the court erred in attaching the suspicionless search condition upon his supervised release without first giving notice pursuant to
II. Discussion
A. Introduction
Since Henry and Larry were co-defendants much of the evidence was over-
B. Larry Woody
We begin and end our discussion of Larry‘s appeal by addressing the sufficiency of the evidence. The requirement for the government to prove each essential element of a crime beyond a reasonable doubt is of immense importance in our criminal justice system. See In re Winship, 397 U.S. 358, 363-64 (1970) (“a society that values the good name and freedom of every individual should not condemn a man for commission of a crime when there is reasonable doubt about his guilt“). Accordingly, we review the sufficiency of the evidence de novo. United States v. Voss, 82 F.3d 1521, 1524-25 (10th Cir.1996). In so doing, we must “view[] the evidence in the light most favorable to the government” and ask whether “any rational trier of fact could have found the defendant guilty of the crime beyond a reasonable doubt.” United States v. Vallo, 238 F.3d 1242, 1247 (10th Cir.2001); accord Jackson v. Virginia, 443 U.S. 307, 319 (1979). The discretion to resolve conflicting testimony, weigh the evidence, and draw inferences from basic facts to ultimate facts lies with the jury. United States v. Nieto, 60 F.3d 1464, 1469 (10th Cir.1995). On the other hand, the evidence relied upon to support a conviction must be substantial and raise more than a mere suspicion of guilt. United States v. Jameson, 478 F.3d 1204, 1208 (10th Cir.), cert. denied, U.S. — , 128 S.Ct. 321, 169 L.Ed.2d 227 (2007). Inferences may be properly drawn from the evidence but, to be reasonable, an inference must be based on more than mere conjecture and speculation, United States v. Atencio, 435 F.3d 1222, 1232 (10th Cir.), cert. denied, U.S. —, 126 S.Ct. 2310, 164 L.Ed.2d 830 (2006), and the jury is not permitted to arrive at a guilty verdict by piling inference upon inference, Jameson, 478 F.3d at 1208.
To convict of second-degree murder under
Both Henry and Larry denied involvement; neither self defense nor any other type of justification was at issue. Thus, the primary question is whether the evidence submitted to the jury was sufficient to prove beyond a reasonable doubt Larry killed Tutt or whether he aided and abetted the murder.
Upon close examination of the testimony and evidence adduced against Larry, we conclude no rational trier of fact could have found him guilty of second-degree murder beyond a reasonable doubt. While
The lack of forensic evidence connecting Larry to the killing is also noteworthy. The forensic pathologist stated Tutt lost large amounts of blood, probably two to two and a half quarts, and significant bleeding would have occurred given the nature of the injuries. Indeed, the testimony revealed that blood had covered surrounding tree branches, and yet authorities did not find any of Tutt‘s blood on Larry‘s clothing or the backpack he constantly carried. Neither could the government establish the time of death. The FBI also did not find any trace evidence from Tutt (i.e. hairs or fibers) on Larry‘s possessions and did not find any of Larry‘s DNA on Tutt. Lastly, the FBI found no fingerprints on the steak knife.
The most damning bit of evidence against Larry is, of course, Dawes‘s testimony—he observed Henry (described as “the shorter [man]“) and Larry (described as “the taller [man]“) kicking and punching a man matching Tutt‘s description around dusk on April 25. (R. Vol. X at 166.) Despite the great distance from which Dawes made these observations and the inconsistencies in his statements regarding the number of individuals participating in the assault, we must assume his testimony is true and he did indeed see the Defendants hitting and kicking Tutt that evening. But while that fact incontrovertibly establishes battery of Tutt by the Defendants, it does not, without more, provide sufficient evidence to convict Larry of second-degree murder. Notably, Dawes never testified he saw a weapon of any sort, let alone a steak knife. Moreover, the exculpatory evidence regarding the physical state of Larry‘s right hand only two days after the killing must function into the equation and Larry only confessed to buying and drinking “ocean” with Tutt, hardly an admission to second-degree murder.
Larry‘s spontaneous statement to Agent Hall is insufficient to lift the government‘s case over the threshold of reasonable doubt. He told Hall, “I didn‘t stab him or I would have blood all over my jeans.” (R. Vol. XI at 395 (quotations omitted)). We are somewhat baffled by the government‘s argument that this exculpatory statement is overt evidence of guilt. Even false exculpatory statements (which the government did not prove this was) cannot be considered by the jury as direct evidence of guilt. See United States v. Davis, 437 F.3d 989, 996 (10th Cir.), cert. denied, 547 U.S. 1122 (2006). Viewed in the light most favorable to the government, Larry‘s statement is not sufficiently inculpatory, even when combined with drinking “ocean” and participation in the assault on Tutt, to establish guilt beyond a reasonable doubt.5
Although the government is not required to present evidence which eliminates all possible hypotheses of innocence, “readily available inferences of innocence” must be factored into our determination of whether a reasonable jury could find a particular defendant guilty of the crime charged beyond a reasonable doubt. Maldonado v. Scully, 86 F.3d 32, 37 (2d Cir.1996) (Oakes, J., dissenting). Suffice it to say that the evidence brought forth at trial, even when viewed in toto and in the light most favorable to the government, is insufficient to establish Larry‘s guilt beyond a reasonable doubt.
A comparison of the evidence against Larry with that presented in United States v. Vallo, is instructive. 238 F.3d 1242 (10th Cir.2001). In that case, we held the evidence was sufficient to support the defendants’ (a mother for aiding and abetting and her boyfriend as a principal) second-degree murder convictions for the death of an infant. Id. at 1247-49. Although the type and quantity of evidence adduced in Vallo is by no means the minimum required to convict for second-degree murder, it is nonetheless illustrative. The evidence indicated the defendants had repeatedly assaulted the child on the date of his death and in the past (the defendants, in fact, admitted to doing so), and the expert medical testimony established the infant died from a recent combination of shaking and blunt force trauma. The evidence presented in Vallo—clear admissions of assaulting an infant (something which is, in and of itself, sufficient to cause death) coupled with scientific evidence and consistent past behavior—was vastly stronger than the evidence the jury took under consideration in the instant case.
Unfortunately, there are few other reported federal decisions addressing the sufficiency of the evidence presented in second-degree murder trials. We have located, however, a factually analogous state court decision. In State v. White, 293 N.C. 91, 235 S.E.2d 55 (1977), the North Carolina Supreme Court concluded there was insufficient evidence to support the defendant‘s second-degree murder conviction. Id. at 59. The jury heard evidence in the case that the victim had lived in a mobile home adjacent to a motel where the defendant resided, the defendant frequently visited the victim, the defendant was a black male and a black male was seen running away from the mobile home on the evening of the killing, there was blood found on the carpet of the defendant‘s motel room, and a knife similar to the murder weapon was found in the defendant‘s motel room. See id. at 56-58. In reversing the trial court‘s refusal to grant the defendant‘s motion for non-suit, the North Carolina Supreme Court reasoned:
[t]he State has shown that the defendant was in the general vicinity of the deceased‘s home at the time of the murder and that he made several arguably contradictory statements during the course of the police investigation. It may even reasonably be inferred that the defendant was at the home of the deceased when the deceased came to her death, or shortly thereafter. Thus, the State has established that the defendant had an opportunity to commit the crime charged. Beyond that we must sail in a sea of conjecture and surmise. This we are not permitted to do.
The government, however, also relies upon an aiding and abetting theory. Pursuant to
(1) that the defendant associated [himself] with a criminal venture; (2) that the defendant participated in the venture as something [he] wished to bring about; (3) that [he] sought by [his] actions to make it succeed; and, lastly, (4) that the proof establishes the commission of the offense by someone and the aiding and abetting by the defendant so charged.
United States v. Lee, 54 F.3d 1534, 1540 (10th Cir.1995). “Although knowledge a crime is being committed is relevant, some showing of intent to further the criminal venture must be introduced at trial.” United States v. Delgado-Uribe, 363 F.3d 1077, 1084 (10th Cir.2004); see also United States v. Hanson, 41 F.3d 580, 582 (10th Cir.1994) (“A defendant may not stumble into aiding and abetting liability by inadvertently helping another in a criminal scheme unknown to the defendant.“).
The government‘s case is not salvaged by its aiding and abetting theory. Aiding and abetting requires a defendant to “willfully associate himself with the criminal venture and seek to make the venture succeed through some action of his own.” United States v. Leos-Quijada, 107 F.3d 786, 794 (10th Cir.1997); see also United States v. Sarracino, 131 F.3d 943, 946 (10th Cir.1997) (discussing the required elements of a conviction under an aiding and abetting theory). In other words, “[t]he aider must have the mens rea to bring about the result committed by the other principals.” United States v. Cooley, 1 F.3d 985, 997 (10th Cir.1993); see also United States v. Hatatley, 130 F.3d 1399, 1406 (10th Cir.1997) (discussing aiding and abetting liability and differentiating it from principal liability). That being said, the government was required to prove Larry participated in the assault and battery of Tutt intending (or reasonably expecting) it would bring about his death. An unpredictable stabbing during the assault (and certainly not later) would not satisfy that requirement. No evidence was presented from which a rational jury could find Larry participated with the knowledge or reasonable expectation the assault would be fatal. Because aiding and abetting requires specific intent, United States v. Lambert, 995 F.2d 1006, 1008 (10th Cir.1993), the act of assaulting Tutt, standing alone, is insufficient. At the very least, the government was required to show Larry knew or should have known a
C. Henry Woody
Henry claims Hayes‘s statements to Agent Hall regarding Defendants’ propensity toward violence and talking about killing people when drinking were erroneously admitted. He argues Hayes‘s statements were not relevant (
1. Statements as Substantive Evidence
When the government attempted to introduce Hayes‘s statements to Agent Hall as substantive evidence during Hayes‘s direct examination, Henry objected on the basis of Rules 401 and 403. “A district court has broad discretion ... and will be reversed only on a showing ... it [made] a clear error of judgment, exceed[ed] the bounds of permissible choice, or when its decision is arbitrary, capricious or whimsical, or results in a manifestly unreasonable judgment.” United States v. Nickl, 427 F.3d 1286, 1300 (10th Cir.2005) (quotations and citation omitted).
As to a lack of foundation, Hayes testified he knew Larry better than Henry, but that does not negate personal knowledge of Henry‘s behavior. Hayes admitted he was interviewed by Agent Hall and clearly stated his acquaintance with both Defendants as well as his personal knowledge of Larry‘s tendency to hit people when angry. Similarly, the lack of direct evidence that the Defendants were angry the night of the murder is not fatal. The jury could reasonably infer anger from their assault on Mr. Tutt.
The government concedes a defendant‘s generic threats to people other than the victim are generally inadmissible to show the defendant was predisposed to murder the victim. See People v. Williams, 85 Ill.App.3d 850, 41 Ill.Dec. 110, 407 N.E.2d 608, 613 (Ill.App.Ct.1980); see also Sikes v. State, 252 So.2d 258, 260-61 (Fla.Dist.App.Ct.1971); State v. Faust, 254 N.C. 101, 118 S.E.2d 769, 772 (1961). However, it argues the statements at issue were relevant because they prove motive for the unpremeditated murder of Tutt, stating: “In this case, the United States offered the evidence to show that the Woody brothers become violent and angry while drinking. The evidence made it more probable that the Woody brothers attacked Tutt while drunk and angry, without any premedita-
Henry‘s counsel also objected to the admission of the evidence with a very general objection under
We find the Seventh Circuit‘s discussion of motive in the context of
In opening argument, the government explained its theory of the case as follows:
This case is almost without a motive. It‘s a fight. Kenneth Tutt got beaten. You say what was the motive? The motive you may infer from the evidence and the facts that you get, that Mr. Tutt had recently got paid, he had money, and he having money would be able to supply, with that money, the alcohol that these two defendants and Kenneth were drinking. He was a source for the procurement of alcohol. And when he didn‘t continue to procure it, he got beaten, punished, stabbed and killed.
(R. Vol. VIII at 128.) Hayes‘s statements regarding the Defendants’ propensity toward violence when drinking was the only evidence supporting this theory. There was testimony Tutt gave Larry some money to buy “ocean,” but no evidence Tutt had just been paid, no evidence Tutt and either Defendant argued over money, no evidence linking the murder to robbery, and no money found on Henry or Larry. Consequently, only the Defendants’ violent and threatening characters lend credence to the government‘s theory of Tutt‘s murder. As a result, the “motive” evidence is nothing more than evidence of Henry‘s general propensity toward violence when drinking and angry. “Showing that a man is generally bad has never been under our system allowable. The defendant has a right to be tried on the truth of the specific charge contained in the indictment.” United States v. Gilliland, 586 F.2d 1384, 1389 (10th Cir.1978). We conclude the district court erred in allowing evidence of Henry‘s violent character.
The government argues that if there was error, it was harmless because no actual character “evidence” was adduced through Hayes‘s continued denial he made the statement. The statements were presented to the jury solely through the government‘s questions, which are not evidence, as the court so instructed. If this were the only introduction of Hayes‘s
2. Statements as Impeachment Evidence
Henry argues the district court improperly allowed the government to introduce inadmissible substantive evidence under the guise of impeachment. Although Henry did object to the use of the statement as improper impeachment, he did so only because he claimed Hayes‘s testimony at trial was not inconsistent, an objection correctly overruled by the court.6
(b) Extrinsic evidence of prior inconsistent statement of witness. Extrinsic evidence of a prior inconsistent statement by a witness is not admissible unless the witness is afforded an opportunity to explain or deny the same and the opposite party is afforded an opportunity to interrogate the witness thereon, or the interests of justice otherwise require. This provision does not apply to admissions of a party-opponent as defined in rule 801(d)(2).
There are further restrictions, however, to impeachment evidence. While not specifically incorporated in
In addition, upon admission of prior inconsistent statements, “[i]t is well settled that contradictory statements introduced for the purpose of impeachment are not admissible as substantive evidence.”
a. Collateral Matter
The collateral matter rule is a subset of a court‘s authority to exclude impeachment evidence under
In Walker, the defendant was charged with two counts of illegal possession of a firearm. One of the counts stemmed from an incident in which Walker drove to Hyle‘s house, a man he suspected was dating his ex-wife. Hyle testified Walker shot at him and he returned fire. To impeach this testimony, Walker attempted to introduce evidence of the investigating officer‘s testimony in a prior hearing that Hyle told the officer Walker did not shoot first. The trial court allowed Walker to put the officer on the stand. However, when the officer did not testify he was told Hyle shot first, the court precluded further questioning of the witness. We upheld the trial court‘s decision, reasoning:
There is no dispute that the issue of whether at some prior time Mr. Hyle stated he had fired first was relevant only for impeachment purposes. The indictment charged only the status offense of possession of a weapon and did not include assault charges. Who fired first was irrelevant to the issue of guilt. The defense effort to impeach Mr. Hyle on the issue of who fired first was therefore a collateral issue.... [I]mpeachment on a collateral matter [is] properly excluded in the discretion of the trial court.
930 F.2d at 791-92 (quotation omitted).
“That evidence concerns a collateral matter does not, of course, necessarily render it inadmissible. To the contrary, such evidence is admissible provided that it is ‘relevant’ and not otherwise prescribed by law or rule.” United States v. Fonseca, 435 F.3d 369, 374-75 (D.C.Cir.2006). Under
b. Rule 403
Hayes‘s testimony established his age, 34; the location and lack of security of his residence; his acquaintance with the Defendants; a birthday party on August 25, 2004; the presence of his father and his father‘s companion on the 25th in the shack; he did not see the Defendants on the 25th or 26th; he was interviewed by Agent Hall and another officer; Henry stutters when he gets nervous;8 and Hayes did not remember or did not think he made certain statements to Agent Hall. In other words, he did not testify to much of anything demonstrating Henry‘s guilt. Instead, any impeachment was most probative of what Hayes denied or could not remember at trial. Thus, the probative value of the impeachment, challenging his credibility to undermine the subject matter of his testimony, was negligible. Moreover, Hayes‘s credibility was already attacked by the court when it admonished him during his direct examination.
On the other hand, the admission of Henry‘s alleged behavior when drinking or angry was highly prejudicial. No other witness testified to Henry‘s propensity for violence when drinking or his tendency to make death threats when angry. We recognize “exclusion of evidence under Rule 403 that is otherwise admissible under the other rules ‘is an extraordinary remedy and should be used sparingly.‘” Tan, 254 F.3d at 1211 (quoting United States v. Rodriguez, 192 F.3d 946, 949 (10th Cir.1999)). However, “the danger of confusion which arises from the introduction of testimony under circumstances such as are presented here is so great as to upset the balance and to warrant continuation of the rule of exclusion.” United States v. Ince, 21 F.3d 576, 580 (4th Cir.1994) (quotations omitted). Thus, the unfair prejudice of Hayes‘s out-of-court statement substantially outweighed the probative value and were inadmissible to impeach Hayes under
c. Substantive Use of Impeachment
Because Hayes‘s descriptions of the Defendants’ behavior was not admitted for its truth, the jury could not properly consider them evidence of Henry‘s motivation to kill or of his guilt. United States v. Magleby, 241 F.3d 1306, 1313 n. 4 (10th Cir.2001). Henry maintains, despite the court‘s limiting instruction to the jury, this is exactly how the government urged the jury to use the information in reaching a verdict. We must agree.
In closing, the government stated, “In the course of the impeachment [of Hayes], later through Agent Hall, it was developed impeachment style on Hayes that he told Agent Hall when these two defendants get mad, they talk about killing people and [when] they drink, they threaten people. This is for you to decide because you‘re the best people to do this.” (R. Vol. XII at 480.) In other words, the government invited the jury to use the impeachment testimony not to judge Hayes‘s credibility, but to believe his statements to Hall and determine Defendants’ guilt from an inference they are violent characters who will murder when drinking and angry.
We sympathize with the district court given the lack of assistance from counsel for all parties in appropriately defining the evidentiary issues. However, despite our deferential review of the court‘s evidentiary decisions, we conclude the admission of Hayes‘s statement was error. The probative value was far outweighed by the danger of unfair prejudice and jury confusion. Given the facts before us, the admission of Hayes‘s statements regarding Henry‘s propensity toward violence “placed the underlying fairness of the entire trial in doubt.” See Rosario Fuentez, 231 F.3d at 708.
As discussed in Larry‘s appeal, the evidence supporting Henry and Larry‘s guilt overlapped and, as a whole, was weak at best. In addition, the possibility the jury used these statements as substantive evidence cannot be ignored.
The introduction of such testimony, even where limited to impeachment, necessarily increases the possibility that a defendant may be convicted on the basis of unsworn evidence, for despite proper instructions to the jury, it is often difficult for jurors to distinguish between impeachment and substantive evidence.... When the prosecution attempts to introduce a prior inconsistent statement to impeach its own witness, the statement‘s likely prejudicial impact often substantially outweighs its probative value for impeachment purposes because the jury may ignore the judge‘s limiting instructions and consider the “impeachment” testimony for substantive purposes. Ince, 21 F.3d at 580-81 (quotations omitted); see also United States v. Beno, 324 F.2d 582, 587 (2d Cir.1963) (“By attempting to show [the defendant] was the sort of man likely to be the perpetrator of crime, the prosecution denied him a fair opportunity to defend against the particular crime charged, for this sort of evidence weighs too heavily with the jury and makes impossible the dispassionate approach necessary if justice is to be achieved.“). Given the paucity of the government‘s evidence (including the lack of forensic evidence against Henry), the small probative value of impeaching Hayes, the government‘s suggestion in closing that the jury use the statements for substantive purposes (coupled with an unsupported comment that Hayes was afraid of the Defendants), we must conclude the admission of Henry‘s propensity toward violence requires reversal and a new trial. Therefore, the remainder of Henry‘s claims are moot.
Conclusion
Because the government failed to present sufficient evidence to find Larry Woody guilty beyond a reasonable doubt, his conviction is REVERSED.9 The district court‘s erroneous admission of evidence showing Henry Woody‘s general propensity toward violent behavior placed the underlying fairness of the entire trial in doubt. His conviction is REVERSED and his case REMANDED for further proceedings consistent with this order.
UNITED STATES of America, Plaintiff-Appellee, v. Jaime Humberto GARCIA-FUENTES, Defendant-Appellant.
No. 06-1453.
United States Court of Appeals, Tenth Circuit.
Oct. 12, 2007.
Wyatt Burwell Angelo, Office of the United States Attorney, Grand Junction, CO, Troy A. Eid, Paul Farley, Martha A. Paluch, Office of the United States Attorney, Denver, CO, for Plaintiff-Appellee.
Jaime Humberto Garcia-Fuentes, Pecos, TX, pro se.
John F. Sullivan III, Attorney at Law, Denver, CO, for Defendant-Appellant.
Before LUCERO, HARTZ, and GORSUCH, Circuit Judges.
ORDER AND JUDGMENT*
HARRIS L. HARTZ, Circuit Judge.
Defendant Jaime Humberto Garcia-Fuentes pleaded guilty to possession with intent to distribute 50 grams or more of methamphetamine. See
On November 15, 2004, a grand jury from the United States District Court for the District of Colorado handed down a two-count indictment against Defendant Garcia-Fuentes. Count One charged him with possession with intent to distribute 50 grams or more of a substance containing methamphetamine; Count Two charged him with unlawful reentry of a deported alien. See
On June 16, 2006, Defendant Garcia-Fuentes entered his plea. In the plea agreement he admitted to the following description of the offense: On October 30,