27 F.3d 470 (10th Cir. 1994), 93-2192, United States v. Abeyta

Docket Nº:93-2192.
Citation:27 F.3d 470
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. David Bernard ABEYTA, Defendant-Appellant.
Case Date:June 07, 1994
Court:United States Courts of Appeals, Court of Appeals for the Tenth Circuit

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27 F.3d 470 (10th Cir. 1994)

UNITED STATES of America, Plaintiff-Appellee,


David Bernard ABEYTA, Defendant-Appellant.

No. 93-2192.

United States Court of Appeals, Tenth Circuit

June 7, 1994

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Teresa E. Storch, of the Office of the Federal Public Defender, Albuquerque, NM, for defendant-appellant.

Rhonda P. Backinoff, Asst. U.S. Atty., Albuquerque, NM (John J. Kelly, U.S. Atty., with her on the brief), for plaintiff-appellee.

Before WHITE, Associate Justice (Ret.); [*] SEYMOUR, Chief Judge; and MOORE, Circuit Judge.

WHITE, Associate Justice (Retired).

Appellant challenges his assault conviction under 18 U.S.C. Sec. 113(c), arguing primarily that the trial court's stated reasons for denying him a lesser included offense instruction were improper. We think his claim meritorious and remand the case to the District Court for further proceedings.

In the afternoon of April 2, 1992, appellant David Abeyta consumed a six pack of beer and a pair of whiskey shots before making his way to the home of Jody Sandoval, a friend. He went to Sandoval's seeking a ride to the Hacienda Lounge in Espanola, New Mexico where he hoped to cash his income tax refund check. Sandoval thought appellant already intoxicated but agreed to drive him to the bar. The two, joined by other friends, ended up spending much of the evening together at the Hacienda; while there, appellant had another six beers and somewhere between two and five additional whiskey shots.

Sometime after 11 p.m. Greg Abeyta, another patron at the bar, and appellant began what some witnesses described at trial as a loud shouting match over their shared surname. Greg Abeyta himself testified that their argument began when he asked whether appellant was related to Ricky Abeyta, a resident of the area who made national headlines in 1991 when he was charged with seven homicides. Appellant claimed at trial to have no recollection of the argument since he was "pretty well intoxicated" by the time it transpired; he did, however, indicate that he recalled Greg Abeyta patting his pocket as if to suggest he was carrying a knife or gun he might put to use. Several witnesses inside the bar agree that both men were quite drunk.

At some point near the Hacienda's closing time the two Abeytas again confronted one another, though this time they did so outside the Lounge and their accounts of this critical meeting differ. Greg Abeyta testified at trial that appellant left the bar around 1:30 a.m. and that he left later, around 2:00 a.m. When approaching his car to head for home, Greg Abeyta stated that appellant overcame and twice stabbed him. Quite differently, appellant testified that he remembered the bartender ousting Greg Abeyta and him from the bar at the same time. Once outside,

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according to appellant, Greg Abeyta came at him with something shiny he thought to be a knife or gun; afraid, he pulled out his own knife and "poked him." Appellant does "kind of" remember stabbing Greg Abeyta once, though he claims little recollection of causing the second wound Greg Abeyta suffered; "still up to this date," appellant stated at trial, "I can't figure out what really happened."

After the incident appellant obtained a ride to his mother's house but had trouble getting his key in the doorlock; his sister had to let him in. Once inside, appellant apparently told his mother that "I think I stabbed a guy [at the Hacienda Lounge]. I don't know what really happened. This guy threw us out. The bartender threw us out." He then fell asleep and two hours later when the police arrived to question him about the happenings at the Hacienda, it took his sister twenty minutes to arouse him. Once awake, appellant indicated that he thought he had indeed stabbed Greg Abeyta. The interviewing officer, other witnesses, and appellant's own behavior confirm that he was still quite intoxicated at this point. Indeed, the interviewing officer, Detective John Vigil, spoke to both Abeytas after the incident--appellant at his mother's home and Greg Abeyta at the hospital where he received treatment--and testified that he thought them equally drunk. We know from hospital tests that Greg Abeyta had a blood alcohol level of 0.31; a doctor informed the trial court that this is three times the legal limit for driving in New Mexico, that it is "a very high level of intoxication," and that some people become comatose with this quantity of alcohol in their systems.

Appellant was eventually indicted on one count of assault with a dangerous weapon with specific intent to do bodily harm, in violation of 18 U.S.C. Sec. 113(c) and 1153. 1 At the close of trial, he asked the court to instruct the jury on self defense and on the New Mexico crime of aggravated assault. This latter instruction was proper, he argued, because the New Mexico offense is a lesser included offense of the federal crime of assault with a dangerous weapon with intent to do bodily harm, and because the Assimilative Crimes Act, 18 U.S.C. Sec. 13, permits reference to state law crimes in federal court when federal law supplies no similar offense. 2 The court agreed to provide the self defense instruction but refused the proffered New Mexico aggravated assault charge, reasoning that a lesser included offense instruction would not be sensible on the facts of the case; given that it thought no lesser included instruction warranted, the court had no occasion to reach the question whether the New Mexico offense qualified for assimilation in federal court under 18 U.S.C. Sec. 13. After receiving the court's instructions and conducting its deliberations, the jury returned a guilty verdict. This appeal followed with appellant arguing primarily that the trial court erred when it denied him the requested New Mexico lesser included offense instruction.

Keeble v. United States, 412 U.S. 205, 208, 93 S.Ct. 1993, 1995, 36 L.Ed.2d 844 (1973), stated the controlling law with respect to the obligation of federal courts to give a requested lesser included offense instruction:

[I]t is now beyond dispute that the defendant is entitled to an instruction on a lesser included offense if the evidence would permit a jury rationally to find him

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guilty of the lesser offense and acquit him of the greater. The Federal Rules of Criminal Procedure deal with lesser included offenses, see Rule 31(c), and the defendant's right to such an instruction has been recognized in numerous decision of this Court. See, e.g., Sansone v. United States, 380 U.S. 343, 349 [85 S.Ct. 1004, 1009, 13 L.Ed.2d 882] (1965); Berra v. United States, 351 U.S. 131, 134 [76 S.Ct. 685, 688, 100 L.Ed. 1013] (1956); Stevenson v. United States, 162 U.S. 313 [16 S.Ct. 839, 40 L.Ed. 980] (1896).

This obligation, the Court observed, arose because "[w]here one of the elements of the offense charged remains in doubt, but the defendant is plainly guilty of some offense, the jury is likely to resolve its doubts in favor of conviction." Id., at 212-213, 93 S.Ct. at 1997-1998. 3

Cases in this court, as in other circuit courts, have provided district courts with considerable guidance regarding when a lesser included offense instruction is required. See Fitzgerald v. United States, 719 F.2d 1069, 1071 (10th Cir.1983); United States v. Chapman, 615 F.2d 1294, 1299 (10th Cir.), cert. denied, 446 U.S. 967, 100 S.Ct. 2947, 64 L.Ed.2d 827 (1980). Much like tests laid down by the District of Columbia and Eighth Circuits, 4 the Fitzgerald formulation provides...

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