U.S. v. Warren

• Decision Date: 07 June 1994
• Docket Number: No. 93-10384,93-10384
• Citation: 25 F.3d 890
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Johnnie T. WARREN, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 890

25 F.3d 890

UNITED STATES of America, Plaintiff-Appellee, v. Johnnie T. WARREN, Defendant-Appellant.

No. 93-10384.

United States Court of Appeals Ninth Circuit.

Argued and Submitted May 9, 1994.

Decided June 7, 1994.

Rustam A. Barbee, Asst. Federal Public Defender, Honolulu, HI, for defendant-appellant.

Edward H. Kubo, Jr., Asst. U.S. Atty., Honolulu, HI, for plaintiff-appellee.

Appeal from the United States District Court for the District of Hawaii.

Before: FARRIS, BEEZER, and RYMER, Circuit Judges.

Opinion by Judge FARRIS; Concurrence by Judge RYMER.

FARRIS, Circuit Judge:

Johnnie T. Warren appeals his conviction for first degree murder. 18 U.S.C. Sec. 1111. He argues that the district court erred by employing the blind strike method of jury selection, admitting irrelevant and prejudicial evidence, refusing to submit his theory of defense instruction, and improperly instructing the jury that it could infer malice aforethought through his use of a knife. We affirm.

I.

We summarized the background facts in United States v. Warren, 984 F.2d 325 (9th Cir.1993) (Warren I ):

On January 5, 1991, 19-year-old Johnnie Warren and a group of his friends were drinking beer at the home of one of the group when Derek Johnson, another friend, arrived and reported a man had accosted Warren's sister at a store on a local army base, Schofield Barracks. Warren and the others set out in search of the man. Several hours later, they confronted William Canady and Rogers Watson near the Paradise Club, an enlisted men's club on the Schofield base. Warren stabbed Canady once in the chest and a second time in the back as Canady collapsed. Warren then stabbed Watson, threw the knife into the bushes, and fled. Canady died from his wounds; Watson recovered.

Id. at 327.

A jury convicted Warren of first degree murder, attempted murder, and assault with a deadly weapon. "The court sentenced Warren to life without parole for the murder of Canady, 20 years for the attempted murder of Watson, and five years for assault with a deadly weapon." Id. Warren appealed. Holding that the district court responded inadequately to questions from the jury about premeditation and second degree murder, we reversed the conviction for murder, but upheld the convictions and sentences for attempted murder and assault. Id. at 329-31.

After a second trial on the murder charge, a jury found Warren guilty of first degree murder. The district court sentenced Warren to life without parole to run concurrent with his previous sentences for attempted murder and assault.

II.

The district court used the blind strike method of jury selection, in which the parties simultaneously exercise peremptory challenges to the jury panel without knowing which jurors their opponent has struck. The judge is the only one in his district who uses this method. In exercising their challenges, Warren and the government both struck the same juror. Warren contends that the use of the blind strike method violated his rights to due process and equal protection, and was contrary to Federal Rule of Criminal Procedure 24(b). ¹

The district court's selection of procedures for the exercise of peremptory challenges is reviewed for an abuse of discretion. United States v. Turner, 558 F.2d 535, 538 (9th Cir.1977). Defendants need not show that they were prejudiced by an error. Id. at 538-39 (citing Swain v. Alabama, 380 U.S. 202, 219, 85 S.Ct. 824, 835, 13 L.Ed.2d 759 (1965)).

District courts have wide discretion to select a method for the exercise of peremptory challenges. Turner, 558 F.2d at 538; see also Pointer v. United States, 151 U.S. 396, 412, 14 S.Ct. 410, 416, 38 L.Ed. 208 (1894) (holding that courts have discretion to choose the order in which peremptory challenges are exercised). Rule 24(b) sets the number of peremptory challenges available to each side, but does not prescribe a system for striking jurors. Nonetheless, the method selected by the district court must not unduly restrict defendants' use of their challenges. Turner, 558 F.2d at 538.

Even when the government and a defendant challenge the same juror, the blind strike method does not impair a defendant's full use of his or her peremptory challenges. Hanson v. United States, 271 F.2d 791, 793 (9th Cir.1959); Carbo v. United States, 314 F.2d 718, 748 (9th Cir.1963), cert. denied, 377 U.S. 953, 84 S.Ct. 1626, 12 L.Ed.2d 498 (1964). Rule 24(b) does not specify that a defendant's challenges may not overlap the government's. Other circuits have also upheld the use of the blind strike method. See, e.g., United States v. Norquay, 987 F.2d 475, 478 (8th Cir.1993); United States v. Mosely, 810 F.2d 93, 96-97 (6th Cir.), cert. denied, 484 U.S. 841, 108 S.Ct. 129, 98 L.Ed.2d 87 (1987); United States v. Roe, 670 F.2d 956, 961 (11th Cir.), cert. denied, 459 U.S. 856, 103 S.Ct. 126, 74 L.Ed.2d 109 (1982); United States v. Sarris, 632 F.2d 1341, 1343 (5th Cir.1980). Although a judge may be the only one in a district who uses the blind strike method, unless the local rules are to the contrary, nothing prohibits this divergence from customary practice.

III.

The district court permitted testimony that when Warren and his friends drove up to the Paradise Club, Warren was heard by a witness to say that he wanted to "do somebody," and that when the witness tried to persuade Derek Johnson to put his knife away, Warren told her to "shut the f--- up." Warren argues that these statements were inadmissible hearsay.

We review the district court's decision to admit evidence for an abuse of discretion. United States v. Lim, 984 F.2d 331, 335 (9th Cir.), cert. denied, --- U.S. ----, 113 S.Ct. 2944, 124 L.Ed.2d 692 (1993). Whether the district court correctly construed the hearsay rule is a question of law reviewed de novo. United States v. Layton, 855 F.2d 1388, 1398 (9th Cir.1988) (construing Fed.R.Evid. 801(d)(2)(E)), cert. denied, 489 U.S. 1046, 109 S.Ct. 1178, 103 L.Ed.2d 244 (1989).

The statements were admissable under Federal Rule of Evidence 801(d)(2)(A) as admissions by a party opponent. Lim, 984 F.2d at 336. Rule 801(d)(2)(A) provides that a statement is not hearsay if "[i]t is offered against the party and is ... the party's own statement...."

Warren maintains that the statements were as probative of an intent to fight as they were of an intent to kill. This objection goes to the weight of the statements, not their admissibility. A defendant's "own out-of-court admissions ... surmount all objections based on the hearsay rule ... and [are] admissible for whatever inferences the trial judge [can] reasonably draw." United States v. Matlock, 415 U.S. 164, 172, 94 S.Ct. 988, 994, 39 L.Ed.2d 242 (1974).

Warren also argues that the prosecutor impermissibly used the statements during closing argument to inflame the jury's emotions. The statements were relevant to the issues of malice aforethought and premeditation. The record satisfies us that the prosecutor merely explained the government's interpretation of Warren's statements and actions, without improperly appealing to the jury's emotions.

IV.

At the second trial, Warren was charged only with murdering Canady. The district court permitted the government to introduce evidence that Warren stabbed Watson immediately after stabbing Canady. In addition, Watson testified that Warren stated, "You too, huh?" before stabbing him. Warren argues that the introduction of this evidence violated Federal Rule of Evidence 404(b), which states that "[e]vidence of other crimes ... is not admissible to prove the character of a person in order to show action in conformity therewith."

Whether evidence is "other crimes" evidence within the meaning of Rule 404(b) is a question of law that is reviewed de novo. United States v. Soliman, 813 F.2d 277, 278 (9th Cir.1987).

The district court properly allowed the government to introduce evidence regarding the stabbing of Watson. "Evidence should not be treated as 'other crimes' evidence when 'the evidence concerning the ["other"] act and the evidence concerning the crime charged are inextricably intertwined.' " Id. at 279 (quoting United States v. Aleman, 592 F.2d 881, 885 (5th Cir.1979) (alteration in original)). The stabbing of Watson is "inextricably intertwined" with the stabbing of Canady. Both were part of a single course of action and occurred within moments of each other. Offenses committed in a single criminal episode do not become inadmissible because the defendant is being tried for only some of his acts. Soliman, 813 F.2d at 279.

V.

Warren argues that the district court erred in limiting his theory of defense instruction and that this error was compounded by the court's rejection of his premeditation instruction. We reject the argument. The court's instructions adequately conveyed the defense's theory that Warren had not acted with the specific intent to kill Canady and that the killing was not premeditated.

Whether the instructions adequately cover the defense theory is reviewed de novo. United States v. Gomez-Osorio, 957 F.2d 636, 642 (9th Cir.1992); United States v. Mason, 902 F.2d 1434, 1438 (9th Cir.1990). We review the instructions as a whole and consider how the jury would have reasonably understood them in the context of the entire trial. Mason, 902 F.2d at 1441.

Defendants are entitled to have a court instruct a jury on their theory of defense if the instruction is supported by law and has some foundation in the evidence. Id. at 1438; United States v. Escobar de Bright, 742 F.2d 1196, 1198 (9th Cir.1984). Defendants, however, are not entitled to their preferred wording of the instruction. A court may reject portions of a proposed theory of defense that merely rephrase explanations of the law adequately covered elsewhere in the instructions. United States v. Lopez-Alvarez, 970 F.2d 583, 597 (9th Cir.), cert. denied, --- U.S. ----, 113 S.Ct. 504, 121 L.Ed.2d 440 (1992); United States v. Hall, 552 F.2d 273, 275-76 (9th...