577 F.3d 1261 (10th Cir. 2009), 08-2257, United States v. Commanche

Docket Nº:08-2257.
Citation:577 F.3d 1261
Opinion Judge:LUCERO, Circuit Judge.
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Bryan COMMANCHE, Defendant-Appellant.
Attorney:P. Jeffery Jones, Santa Fe, New Mexico, for Defendant-Appellant. Laura Fashing, Assistant United States Attorney (Gregory J. Fouratt, United States Attorney, with her on the briefs), Albuquerque, New Mexico, for Plaintiff-Appellee.
Judge Panel:Before KELLY and LUCERO, Circuit Judges, and EAGAN,[*] District Judge.
Case Date:August 24, 2009
Court:United States Courts of Appeals, Court of Appeals for the Tenth Circuit
 
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Page 1261

577 F.3d 1261 (10th Cir. 2009)

UNITED STATES of America, Plaintiff-Appellee,

v.

Bryan COMMANCHE, Defendant-Appellant.

No. 08-2257.

United States Court of Appeals, Tenth Circuit.

August 24, 2009

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[Copyrighted Material Omitted]

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P. Jeffery Jones, Santa Fe, New Mexico, for Defendant-Appellant.

Laura Fashing, Assistant United States Attorney (Gregory J. Fouratt, United States Attorney, with her on the briefs), Albuquerque, New Mexico, for Plaintiff-Appellee.

Before KELLY and LUCERO, Circuit Judges, and EAGAN,[*] District Judge.

LUCERO, Circuit Judge.

Bryan Commanche was involved in a fight on an Indian reservation. Although he was not the initial aggressor, Commanche drew a box cutter during the fight and injured two of his opponents. He maintains that he did so in self defense. A jury rejected Commanche's self-defense claim and convicted him of two counts of assault resulting in serious bodily injury. He appeals, arguing that admission of two aggravated battery convictions involving sharp cutting objects was error.

We consider the admissibility under Federal Rule of Evidence 404(b) of bad act evidence that bears on a defendant's intent only insofar as a jury first infers that the defendant has a particular character trait and likely acted in conformity therewith. On the basis of the analysis that follows, we hold that such evidence is inadmissible because the jury must necessarily use it for an impermissible purpose (conformity) before it can reflect on a permissible purpose (intent). Because Commanche's two aggravated battery convictions bear on his intent only if a jury first infers that he is prone to violence, the district court abused its discretion by allowing testimony as to the facts underlying these convictions.

Secondarily, we are asked whether the same evidence is nonetheless admissible under Rule 609(a)(1) as a prior felony conviction. For reasons also explained in this opinion, we conclude that it is not. Exercising jurisdiction under 28 U.S.C. § 1291, we reverse and remand.

I

On the evening of June 11, 2005, Commanche attended a feast on the Mescalero Indian reservation. Others in attendance included Cullen Kaydahzinne, Irwin Apachito, and Anjuanan Enjady. Kaydahzinne and Enjady had been dating for

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three or four years; Enjady and Commanche had a previous " one-night stand." During the evening, Kaydahzinne became jealous that Commanche was standing with Enjady. According to Commanche, he told Kaydahzinne he was not interested in Enjady, but Kaydahzinne was not appeased. Kaydahzinne, who was 6'1" and 225 pounds, pushed, then hit 5'11" , 165-pound Commanche. According to Commanche he " started seeing stars" and fell to the ground after being struck. A fight then erupted.

During the fight, Kaydahzinne used his arms to shield his face as he attempted to push Commanche away. When he did so, he felt something cut him. Apachito saw Kaydahzinne stepping backward and came to his aid, pushing and striking Commanche. Apachito was also cut during the melee. Apachito testified that the instrument that cut him appeared to be a box cutter. Neither Kaydahzinne nor Apachito had a weapon of their own; both were seriously injured.

Commanche testified that he was afraid because Kaydahzinne was much larger than he and because Commanche had no friends at the feast. He stated that during the fight " [he] faced death more or less." For that reason, Commanche explained, he drew a box cutter from his pocket and started swinging. Asked what might have happened to him if he had not used the weapon, Commanche replied, " I would have ended up dead."

Commanche was indicted on two counts of assault with a dangerous weapon with intent to do bodily harm in Indian Country in violation of 18 U.S.C. § § 1153 and 113(a)(3), as well as two counts of assault resulting in serious bodily injury in Indian Country in violation of 18 U.S.C. § § 1153 and 113(a)(6). Before trial, the government filed a notice of intent to offer evidence of other bad acts under Federal Rule of Evidence 404(b). Specifically, the government wished to use evidence that Commanche had twice been convicted of aggravated battery after altercations in which he brandished sharp cutting instruments. In that notice, the government merely recited the language of 404(b) as to the permissible purposes of that evidence, asserting that this evidence of " very similar" incidents would not be used to suggest that Commanche had a propensity for violence.1 Commanche moved to suppress this evidence, contending that the jury should not be permitted to consider the prior convictions to show his propensity to commit a particular act. In response, the government argued that if the court excluded the aggravated battery convictions under Rule 404(b), it should nonetheless allow them for impeachment under Rule 609(a)(1).

At a hearing on these motions, Commanche's counsel conceded that the aggravated battery convictions would ultimately be admissible under Rule 609(a)(1) if Commanche testified. He argued, however, that the rule allowed the government solely to show the fact of conviction-not the underlying circumstances of the crimes, or even the charges. In response, the government contended that because Commanche had indicated he would assert self defense at trial, intent and planning would be crucial, rendering the facts underlying these other acts admissible. The district court noted: The evidence " isn't offered for propensity. It's offered to show means and manner." It then ruled that it would allow the use of the disputed evidence and issue a written opinion on the topic.

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During trial, after requiring the government to specifically articulate the purpose of the evidence, the district court allowed two witnesses to testify that Commanche had twice been convicted of aggravated battery, once for an attack with a box cutter. The first witness, a New Mexico state assistant district attorney, testified:

Q. Now ... did you prosecute the defendant, Bryan Commanche, for an event that occurred on September 12, 2005?

A. I did.

....

Q. And the charge arising from September 12, 2005, was an aggravated battery with great bodily harm under the New Mexico statutes; is that correct?

A. That's correct.

....

Q. And was there a weapon used in the case on September 12, 2005?

A. There was.

Q. And what would that weapon be consistent with?

A. With the wounds that the victim in this-case or that case sustained. It was consistent with a sharp cutting instrument.

The second witness, a police captain, testified:

Q. Calling your attention specifically to December 5, 2005, are you aware of an assault, an aggravated battery-that is, the use of a deadly weapon-that occurred on or about December 5, 2005, involving a defendant by the name of Bryan Commanche?

A. Yes, I am familiar with that incident.

Q. And can you tell us, how you were involved in that case?

A. I was a patrol lieutenant at the time, and I was working the evening shift from 4:00 in the afternoon until 2:00 in the morning, and we received a dispatch indicating that a man was injured in an alley.

Q. Had that man been, in fact, assaulted?

A. Yes. He had been stabbed several times.

Q. Stabbed? And can you tell us, was there an investigation made to determine how that stabbing occurred or what instrument was used for that stabbing?

A. Yes, there was an...

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