502 F.2d 908 (8th Cir. 1974), 74-1201, United States v. Bear Runner

Docket Nº:74-1201.
Citation:502 F.2d 908
Party Name:UNITED STATES of America, Appellee, v. Oscar BEAR RUNNER, Appellant.
Case Date:September 05, 1974
Court:United States Courts of Appeals, Court of Appeals for the Eighth Circuit
 
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Page 908

502 F.2d 908 (8th Cir. 1974)

UNITED STATES of America, Appellee,

v.

Oscar BEAR RUNNER, Appellant.

No. 74-1201.

United States Court of Appeals, Eighth Circuit

September 5, 1974

Submitted June 12, 1974.

Page 909

Roger Finzel, Wounded Knee Legal Defense Committee, Sioux Falls, S.D., for appellant.

Ed Carpenter, Asst. U.S. Atty., Sioux Falls, S.D., for appellee.

Before LAY, HEANEY and ROSS, Circuit Judges.

LAY, Circuit Judge.

The defendant, an American Indian, was convicted of the crime of larceny in violation of 18 U.S.C. 661 and 1153 in connection with the killing of a calf on the Pine Ridge Indian Reservation in South Dakota. He was sentenced to two years probation and thereafter brought this appeal. On appeal he alleges three points of error: (1) the restrictions placed by the court upon his cross-examination of the government's principal witness; (2) the admission of evidence relating to the shooting of a second cow, an occurrence which was the subject of additional charges dismissed before trial; and (3) the inadequacy of the voir dire examination conducted by the trial judge. We reverse the conviction and remand for a new trial.

Our review of the record and the law convinces us that defendant's first and second assignments of error are without merit. The evidentiary rulings questioned were well within the broad discretion granted to the trial judge in such matters. We have more difficulty, however, in assessing the validity of his challenge to the sufficiency of the voir dire examination. That challenge is twofold. He argues, first, that the questions asked by the court failed to adequately probe the possible effects of pre-trial publicity, and, second, that they were insufficient to reveal any latent racial prejudices possibly entertained by the prospective jurors.

The defendant's first contention is based upon the fact that, in the months preceding his trial, several disruptive incidents involving American Indians had occurred in western and central South Dakota, most notably, the occupation of Wounded Knee. 1 Though the charges

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against the defendant concededly arose from events totally isolated from those which were the subject of publicity, he nonetheless argues that the trial court should have more thoroughly interrogated the prospective jurors with respect to the possible prejudicial effects of this publicity. The court made only the following inquiry:

THE COURT: Has anyone else on the panel heard anything about the case?

I would say at the outset that this is a non-Wounded Knee case. I do this at the risk of putting in too much importance of whether something is or is not Wounded Knee.

I wouldn't care if this was as to Wounded Knee or not. I would want a fair and impartial jury regardless, and I would state this now so there won't be any conjecture being made. This is not related to this particular alleged incident or set of incidents.

Now, again, no one has heard anything about this.

There is no doubt that the trial judge has the duty to neutralize the effect of any known area of prejudice. The difficulty here is that the defendant did not submit any additional questions nor did his counsel seek leave to interrogate the jurors on the matter of publicity. It is fundamental that a defendant may not assert as error on appeal matters not complained of at trial. Skogen v. Dow Chemical Co., 375 F.2d 692 (8th Cir. 1967).

However, the defendant did seek to have the trial court ask additional questions of the jurors concerning the possibility of racial prejudice. The court's initial inquiry on this point was limited to the following:

American Indians are on trial here, that is, they are Indians and they are Americans. I wouldn't care whether they are American Norwegians or Swedes. They are to be treated like men.

Now, this can be cut both ways. Is there anyone here with a prejudice either way concerning American Indians to such an extent that these gentlemen could not get a fair and impartial trial before you; that is, does anyone of you have a prejudice either way? The United States has a right to have a fair trial as well as the Defendants. So, whatever way it goes, if you feel you are going to be prejudiced either way, I want to know about it right now.

Is there anyone that has such a prejudice or such a feeling?

All right. Negative.

Upon completion of the voir dire, the defendant expressed his dissatisfaction with this limited inquiry and sought to have the court examine the prospective jurors more thoroughly. The defendant submitted these additional questions:

1. Do you accept the idea that customs, actions and needs of those persons raised and living in an Indian culture can be different from the customs, actions and needs of those persons raised in a white culture? 2. Do you accept the idea that these customs, actions and needs of those persons raised and living in an Indian culture are just as valid as those customs, actions and needs of persons raised in a white...

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