624 F.3d 1090 (9th Cir. 2010), 09-30122, United States v. Redlightning

Docket Nº:09-30122.
Citation:624 F.3d 1090
Opinion Judge:GOULD, Circuit Judge:
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Henry Keeler REDLIGHTNING, Defendant-Appellant.
Attorney:Michael Filipovic (argued), First Assistant Public Defender, Corey Endo, and Christopher J. Kerkering, Seattle, WA, for the defendant-appellant. Jenny A. Durkan, U.S. Attorney, Michael S. Morgan (argued), Assistant U.S. Attorney, Western District of Washington, Seattle, WA, for the plaintiff-appe...
Judge Panel:Before: KIM McLANE WARDLAW and RONALD M. GOULD, Circuit Judges, and RICHARD MILLS, Senior District Judge.[*]
Case Date:October 25, 2010
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit
 
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624 F.3d 1090 (9th Cir. 2010)

UNITED STATES of America, Plaintiff-Appellee,

v.

Henry Keeler REDLIGHTNING, Defendant-Appellant.

No. 09-30122.

United States Court of Appeals, Ninth Circuit

October 25, 2010

Argued and Submitted May 4, 2010.

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Michael Filipovic (argued), First Assistant Public Defender, Corey Endo, and Christopher J. Kerkering, Seattle, WA, for the defendant-appellant.

Jenny A. Durkan, U.S. Attorney, Michael S. Morgan (argued), Assistant U.S. Attorney, Western District of Washington, Seattle, WA, for the plaintiff-appellee.

Appeal from the United States District Court for the Western District of Washington, James L. Robart, District Judge, Presiding. D.C. No. 2:07-cr-00358-JLR-1.

Before: KIM McLANE WARDLAW and RONALD M. GOULD, Circuit Judges, and RICHARD MILLS, Senior District Judge.[*]

OPINION

GOULD, Circuit Judge:

Henry Redlightning appeals his jury conviction for killing Rita Disanjh on Native American land with premeditation and in the perpetration or attempted perpetration of sexual abuse. See 18 U.S.C. §§ 1111, 1151, 1153(a). Redlightning argues first that the district court erred by refusing to suppress his confessions to the murder of Disanjh. Redlightning's theories of suppression are that the confessions resulted from his unlawful detention by FBI agents and also that the agents did not promptly present him for an arraignment. Redlightning argues second that the district court erred by excluding expert testimony about false confessions and expert testimony about the effect of Redlightning's impaired vision, diabetes, and Post-Traumatic Stress Disorder (" PTSD" ) on his mental condition and susceptibility to making a false confession. Redlightning argues third that the district court erred on several other evidentiary rulings, such as by excluding evidence that a police officer previously supplied a suspect with nonpublic information about the murder, by excluding hearsay evidence that another suspect may have committed the murder, and by excluding evidence of manual strangulations in neighboring King County. Redlightning argues fourth that the district court erred by admitting into evidence his confessions to sexually assaulting another victim. Redlightning argues fifth that the district court erred by rejecting his proposed jury instruction about the reliability, credibility, and truthfulness of his confession. Redlightning argues sixth that the prosecutor engaged in misconduct, offending due process, when he said during closing arguments that people do not confess to crimes they did not commit. We have jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm.

I

On August 9, 1987, the body of Rita Disanjh was found in the Nooksack River on the Lummi Indian Reservation in Whatcom County, Washington. There was no forensic evidence that Disanjh was sexually assaulted, but that could be inferred because her body was discovered unclothed, the body was found in water and that could have washed away evidence of a sexual assault, and the pathologist could not rule out the possibility of a sexual assault. A pair of women's underwear was found in the water near the body. The pathologist concluded that Disanjh was killed by manual strangulation, and thought this distinctive because it was the only manual strangulation that the pathologist could remember in thirty-six years as Whatcom County's pathologist. Disanjh

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did not have drugs in her system, but had a blood-alcohol level of 0.22. The police found tire tracks near the body.

The police learned that on the night of her murder Disanjh had been with her boyfriend, John Root, but left him to visit a Bellingham bar. From there, Cyril LaClair gave Disanjh a ride to a beach party on the Lummi reservation. Initial suspects in Disanjh's murder included Root and Gregory Pepin, Disanjh's ex-boyfriend who had previously assaulted Disanjh and who had violated a protection order. The police later ruled out Pepin as a suspect. The police spoke to about forty people in the weeks after the murder but developed no leads.

On January 30, 2006, more than eighteen years after the murder, Athena Swope contacted the Whatcom County Sheriff's Office. Swope is the daughter of Redlightning's partner, Patricia Dubbs, and Swope had been living with and caring for Redlightning. There was evidence that Swope had an axe to grind. Swope and Redlightning had been having disputes over money. Athena Swope told the police that Redlightning had verbally abused her and her family and asked if there was a statute of limitations on abuse. She also told of abuse Redlightning inflicted on his grandchildren. The police responded that they could not help her with these issues and referred her to Child Protective Services. Athena Swope then told the police that Redlightning and a former boyfriend Kevin Swope 1 were involved in the murder of a woman.

Agent James Powers of the FBI thereafter interviewed Athena Swope, who in 1987 had been fifteen years old. She told Powers that the night before the Disanjh murder Redlightning and Kevin Swope left in Redlightning's car-a red Plymouth Barracuda-for a night of drinking. She said that the next morning the car and Redlightning's clothes were covered in brown, clay mud. She also said that Redlightning and Dubbs on that morning had an argument, and thirty minutes later began washing the car. Athena Swope said that Redlightning then told her he was going to sell the car, and soon thereafter he did sell it. Athena Swope also told Powers that her mother told her, before Dubbs died in 2003, that Redlightning had confessed to Dubbs that he was involved in the Disanjh murder.

Agent Powers thereafter began to investigate Redlightning, a Vietnam War veteran who was thirty-seven-years-old when Disanjh was murdered. Redlightning has several medical problems and limitations. He suffers from PTSD and the military determined that because of his condition he is 70 percent disabled. Conversations about Vietnam affect Redlightning's ability to process information, causing him to become disorganized and confused. Redlightning suffers from diabetes, has a low-average intellect, is blind in his left eye, and has limited peripheral vision in his right eye.

During his investigation, Agent Powers also learned that Redlightning had confessed to and was convicted of sexually assaulting Linda Rosario in 1990 after Rosario asked Redlightning about his experience in Vietnam. Agent Powers obtained a DNA sample from Redlightning and Redlightning's Veterans Administration file with medical records that showed Redlightning suffered from diabetes and PTSD. Agent Powers thereafter contacted Agent Raymond Lauer, an FBI polygraph and interrogation expert, to help him in questioning Redlightning.

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On October 2, 2007, Agents Powers and Lauer cleared Agent Powers's office preparing for a planned interview with Redlightning. They later went to Redlightning's home and asked him if he would come to the FBI office in Bellingham to talk about some cases. Redlightning agreed, and went with them to the FBI office. During the questioning, Redlightning at first denied involvement in the Disanjh murder and denied knowing Disanjh upon being shown her photograph. Redlightning agreed to answer questions in a polygraph examination, and, upon only the fifth question in the polygraph examination, Redlightning confessed to sexually assaulting and killing Disanjh. Agent Lauer removed the polygraph equipment after Redlightning's admission of guilt and Lauer continued questioning Redlightning about the murder. During this questioning, Redlightning denied committing five other local unsolved murders but also said he participated in or observed the rape or murder of thirty to forty civilians in Vietnam. Although Redlightning had just given a simple " yes" answer initially in the polygraph examination when asked if he sexually assaulted and killed Disanjh, following the further examination by the agent, Redlightning signed a confession giving details about the murder.

After the questioning ended, the FBI agents drove to Redlightning's home to retrieve his medicine, and then they booked Redlightning into the Whatcom County jail.

The next day Agent Powers drove Redlightning from Bellingham to Seattle for Redlightning's arraignment. While transporting Redlightning to Seattle, Agent Powers spoke with an Assistant U.S. Attorney who asked if Agent Powers would reinterview Redlightning. Detouring off the interstate highway that connects Bellingham to Seattle, and which passes through Everett, Agent Powers drove to the FBI office in Everett, Washington, and there obtained an additional confession from Redlightning. Agent Powers thereafter promptly resumed the trip and delivered Redlightning to the district court before the scheduled 2:30 p.m. arraignment.

Subsequently, Agent Powers discovered that the automobile Redlightning used in 1987 had standard wheel width and tracks that were " very close" to the tire tracks found near Disanjh's body. That evidence, however, was not entirely conclusive because he also learned that 809 different types of cars and trucks would have had wheel tracks within an inch and 496 would have been within a half of an inch of those measurements.

Before trial, Redlightning sought, among other things, to have his confessions to murdering Disanjh suppressed and to allow an expert witness to testify about the phenomenon of false confessions. However, Redlightning never...

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