U.S. v. Koon

• Citation: 34 F.3d 1416
• Decision Date: 19 August 1994
• Docket Number: 93-50608,93-50562 and 93-50609,Nos. 93-50561,s. 93-50561
• Parties: , 40 Fed. R. Evid. Serv. 1 UNITED STATES of America, Plaintiff-Appellee, Cross-Appellant, v. Stacey C. KOON, Defendant-Appellant, Cross-Appellee. UNITED STATES of America, Plaintiff-Appellee, Cross-Appellant, v. Laurence M. POWELL, Defendant-Appellant, Cross-Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1416

34 F.3d 1416

63 USLW 2163, 40 Fed. R. Evid. Serv. 1

UNITED STATES of America, Plaintiff-Appellee, Cross-Appellant, v. Stacey C. KOON, Defendant-Appellant, Cross-Appellee.

UNITED STATES of America, Plaintiff-Appellee, Cross-Appellant, v. Laurence M. POWELL, Defendant-Appellant, Cross-Appellee.

Nos. 93-50561, 93-50608, 93-50562 and 93-50609.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted May 2, 1994.

Decided Aug. 19, 1994.

Joel Levine, Encino, CA, William J. Kopeny, Santa Ana, CA, for defendants-appellants-cross-appellees.

Steven D. Clymer, Asst. U.S. Atty., Los Angeles, CA, Irv Gornstein, Civil Rights Div., U.S. Dept. of Justice, Washington, DC, for plaintiff-appellee-cross-appellant.

Appeals from the United States District Court for the Central District of California.

Before: BROWNING and FLETCHER, Circuit Judges, and FITZGERALD, ^* District Judge.

FLETCHER, Circuit Judge:

Stacey Koon and Laurence Powell ("appellants") appeal their jury convictions for deprivation of rights under color of state law in violation of 18 U.S.C. Sec. 242. The United States appeals Koon's and Powell's sentences under the Sentencing Guidelines. We affirm the convictions but remand for resentencing.

BACKGROUND

The arrest of Rodney King occurred in the early morning of March 3, 1991 in Los Angeles. After drinking malt liquor with two friends, King left a suburb of Los Angeles and began driving. At this time he was intoxicated. Officers Melanie Singer and Tim Singer, both California Highway Patrol ("CHP") officers, observed King's vehicle speeding on the 210 Freeway. The officers began to pursue the vehicle and called on the radio for help. Several Los Angeles Police Department ("LAPD") units joined in the pursuit. Among these units was one manned by Powell and his trainee, codefendant Timothy Wind. The pursuit ended when King pulled his car over at an entrance to the Hansen Dam Recreation Area on Osborne St.

The officers ordered King and the other occupants of the vehicle to get out of the vehicle and assume a felony prone position (i.e. King was ordered to lie on his stomach with his arms behind his back, legs spread, heels turned toward the ground, and head turned away from the officers). King got out of the car but did not lie down. At this time Sergeant Koon arrived and took command. Police officers Ted Briseno and Roland Solano arrived soon after. The officers again ordered King to lie in a felony prone position.

King eventually got down on his hands and knees, but did not get into the felony prone position. Officers Powell, Wind, Briseno, and Solano attempted to place him in that position using a "team takedown" or "swarm." King became combative and the The events that occurred next were captured on videotape by George Holliday (the "Holliday videotape"). This videotape was the focus of much of the testimony at trial and is described in detail in the district court's sentencing opinion. See United States v. Koon, 833 F.Supp. 769, 774-80 (C.D.Cal.1993). The following description of the events tracks the relevant time frames on the Holliday videotape.

officers retreated. Koon then fired taser darts into King.

As the videotape begins, it shows that King got to his feet in an attempt to escape. Powell and Wind began to strike King with their batons. At trial it was disputed whether Powell's first blow hit King in the head. The district court concluded that Powell struck King's head accidentally. Id. at 777. King fell to the ground and attempted to rise. At 18 seconds, Briseno put his hand on Powell's baton, which Powell had raised as he stood above King.

From 18 to 30 seconds, King attempted to get up, and was struck with batons by Powell and Wind. From the 35th second to the 51st second, Powell struck King repeatedly. At approximately 43 seconds, one or more of Powell's baton blows fractured King's right leg. At 55 seconds, Powell struck King on the chest or upper abdomen. After this blow, King rolled onto his stomach and lay prone. At this point the officers suspended the use of force and stepped back for about ten seconds. Powell began to reach for his handcuffs. The district court found this movement to be evidence that Powell perceived King no longer to be a threat. Id.

At 1:05, Briseno moved forward and used his left foot to stomp King in the upper back or neck. King's body writhed in response. At 1:07 on the videotape, Powell and Wind began to strike King again with their batons. At approximately 1:29, King put his hands behind his neck and subsequently was handcuffed.

After King was handcuffed, Powell radioed for an ambulance. Powell sent two messages over the Mobile Digital Terminal to other officers that said "ooops" and "I havent [sic] beaten anyone this bad in a long time." Koon sent a message to the police station that said "U[nit] just had a big time use of force.... Tased and beat the suspect of CHP pursuit big time."

King was taken to Pacifica Hospital, where he was treated for a fractured right leg, multiple facial fractures, and multiple bruises and contusions. At the hospital, Powell learned that King worked at Dodger stadium, and said to him, "We played a little ball tonight, didn't we Rodney?" King said, "I don't know." Powell said, "You know, we played a little ball, we played a little hardball tonight, we hit quite a few home runs." King responded, "Yeah I guess so." Powell said, "Yes, we played a little ball and you lost and we won."

Koon, Powell, Wind, and Briseno were tried in state court in Simi Valley, California on charges of assault with a deadly weapon and excessive use of force by a police officer. At the trial, Koon, Wind, and Powell's defense was that the force used during the arrest of King was justified and was not excessive. In contrast, Briseno testified that excessive force was used but that he had tried to prevent its use. The four officers were acquitted on all charges except for one count against Powell on which the jury hung.

On August 4, 1992, a federal grand jury indicted the four officers. Count 1 of the federal indictment charged Powell, Wind and Briseno with willfully depriving King of his constitutional rights in violation of 18 U.S.C. Sec. 242 and with aiding and abetting each other in violation of 18 U.S.C. Sec. 2. Count 2 charged Koon with willfully permitting the other officers to unlawfully strike King and willfully failing to prevent the assault of King by officers in his presence, in violation of 18 U.S.C. Sec. 242.

The case was tried to a jury commencing February 25, 1993. The jury verdicts were handed down on April 17, 1993. Officers Briseno and Wind were acquitted; Officer Powell and Sergeant Koon were found guilty of violating Sec. 242. Koon and Powell were sentenced on August 4, 1993 to thirty months imprisonment and two years of supervised release. See Koon, 833 F.Supp. at 792. Appellants timely appealed their convictions and

the government timely appealed the sentences. We have jurisdiction.

DISCUSSION

A. Admission of Briseno's State Trial Testimony

Before trial, the government moved to admit a videotape recording of codefendant Briseno's testimony in the state court proceeding. The videotape, which was ultimately played as part of the government's rebuttal case, was the subject of many motions in the district court, and continues to be the subject of various claims on appeal.

Briseno's testimony was highly damaging to Koon and Powell. He testified, among other things, (1) that Powell's first blow hit King in the face--which was inconsistent with Powell's position at trial; (2) that Powell delivered a second series of much more forceful blows to King "from the shoulder up"; (3) that Briseno couldn't see or understand what justified the other officers' behavior; (4) that Briseno grabbed Powell's baton and told him to "get the hell off" King; (5) that Briseno yelled to Koon "what the fuck [is] going on out here," but Koon did not respond; (6) that the officers continued to strike King with the baton when he was neither aggressive nor combative; and (7) that Briseno went to the police station after the incident intending to report the use of force.

At the state trial, Briseno was cross-examined by all three of his codefendants as well as the prosecutor, who spent part of his time trying to establish Briseno's own culpability. On both direct and cross-examination, Briseno stated repeatedly that he thought the other officers had acted wrongly. These statements of opinion were redacted from the videotape played at the federal trial.

On appeal, Koon and Powell contend that admission of the videotape violated their Confrontation Clause rights. They also argue that the videotape should not have been admitted as rebuttal evidence, and that it contained improper lay opinion evidence.

1. Confrontation Clause Challenge

"The Confrontation Clause promotes accuracy in the criminal process by ensuring that the trier of fact has a satisfactory basis for evaluating the truth of out-of-court statements." Barker v. Morris, 761 F.2d 1396, 1399 (9th Cir.1985) (citations omitted). When a hearsay declarant is unavailable to testify at trial, his out-of-court statements may be admitted without violating the Confrontation Clause so long as those statements bear sufficient indicia of reliability. Bourjaily v. United States, 483 U.S. 171, 182-83, 107 S.Ct. 2775, 2782-83, 97 L.Ed.2d 144 (1987). "[N]o independent inquiry into reliability is required" under the Confrontation Clause, however, when the out-of-court statements "fall within a firmly rooted hearsay exception." Id. at 183, 107 S.Ct. at 2782. Since Rule 804(b)(1) is a firmly rooted exception to the hearsay rule, Mattox v. United States, 156 U.S. 237, 15 S.Ct. 337, 39 L.Ed. 409 (1895) (discussing history of the exception); United States v. Kelly, 892 F.2d 255, 262 (3d Cir.1989) (collecting authorities), cert. denied, 497 U.S. 1006, 110 S.Ct. 3243, 111 L.Ed.2d 754 (1990), our...