U.S. v. Eagle Elk, 81-1326

• Decision Date: 15 September 1981
• Docket Number: No. 81-1326,81-1326
• Citation: 658 F.2d 644
• Parties: UNITED STATES of America, Appellee, v. Roger EAGLE ELK, Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 644

658 F.2d 644

UNITED STATES of America, Appellee, v. Roger EAGLE ELK, Appellant.

No. 81-1326.

United States Court of Appeals Eighth Circuit.

Submitted Aug. 13, 1981.

Decided Sept. 15, 1981.

Terry L. Pechota, U. S. Atty., Sioux Falls, S. D., David L. Zuercher (argued), Asst. U. S. Atty., Pierre, S. D., for appellee.

Ramon A. Roubideaux (argued), Rapid City, S. D., for appellant.

Before HEANEY, BRIGHT and ROSS, Circuit Judges.

ROSS, Circuit Judge.

On October 1, 1980, the defendant, Roger Eagle Elk, was indicted for first degree murder under 18 U.S.C. §§ 1153 and 1111 (1976) in connection with the shooting death of Gary Dean Stoneman. On February 13, 1981, a jury found the defendant not guilty of first degree murder but guilty of second degree murder. The trial court ¹ sentenced him to a forty year prison term. The defendant grounds this appeal upon the trial court's alleged error in: (1) denying the defendant's motions for a judgment of acquittal because of an insufficiency of evidence, and (2) denying the defendant's request for jury instructions on the lesser-included offenses of voluntary and involuntary manslaughter. ² We affirm the conviction.

I. Factual Background.

In the early morning hours of September 6, 1980, the defendant and Richard Leader Charge went to a house near Rosebud, South Dakota, where the deceased, Gary Stoneman, was staying. Richard Leader Charge's purpose for going to the Stoneman house was to get Remina Eagle Elk, his girlfriend and the defendant's sister. ³ The defendant went to the Stoneman house to talk to Gary Stoneman about the defendant's mother's death on June 7, 1980. Evidence introduced at the trial indicated that the defendant believed that Stoneman was involved in that killing.

The defendant and Richard Leader Charge were armed with a shotgun and a rifle, referred to as a ".243," as they approached the house. At this point the testimony given at the trial sharply diverges. According to Richard Leader Charge's testimony, he was carrying the shotgun and the defendant was carrying the rifle. As they approached the door to the house the defendant said "no survivors." The two men broke open the back door of the house, entered and, using a flashlight held by the defendant, proceeded through the dark house to the bedroom. There they found Gary Stoneman and Remina Eagle Elk lying in bed together. Stoneman stood up and raised his arm. Richard Leader Charge stated that he believed that Stoneman was either attempting to block the light or reach for the shotgun which Leader Charge was holding. However, he stated that Stoneman did not get closer than three or four feet to either the defendant or Leader Charge, did not say anything, and did not have anything in his hands. The defendant immediately shot Stoneman in the chest and Stoneman went out an open bedroom window. The shot awakened Remina Eagle Elk.

The defendant gave two versions of the events transpiring in the Stoneman house. In a signed statement given September 15, 1980, after his arrest in connection with Stoneman's death, the defendant indicated that around 2 or 3 a.m. he and another individual entered the Stoneman house through the open back door. The defendant was carrying a shotgun and the other individual was carrying a rifle. Upon entering the bedroom, the defendant turned on the light and saw Stoneman and Remina Eagle Elk in bed together. Stoneman stood up and asked, "What the hell do you want?" The defendant responded, "Sit down," put a shell in the shotgun chamber, and said, "I want to know everything." Stoneman jumped out of the window. The defendant fired once, but did not know whether Stoneman was facing him or going out the window, and did not know whether the shot hit Stoneman.

At trial the defendant related substantially the same account except that he stated that Stoneman jumped out the window before the defendant fired at him with the shotgun. The defendant stated that he stuck the gun out the window, which was open at a forty-five degree angle at the bottom, and fired, totally missing Stoneman.

On September 13, 1980, Charles Stoneman found the body of his son, Gary Stoneman, clad only in his shorts, about twenty yards from the bedroom window. He found the latch on the back door broken, the door ajar, blood on the bedding, floor and wall in the bedroom, the window ajar and a trail of blood from the window to the spot where the body was found. An autopsy disclosed that Stoneman died as a result of a single gunshot wound to the chest. A portion of the bullet jacket which passed through the lungs and heart was found in the body. The bullet was from a rifle in the .22 caliber family.

II. Sufficiency of the Evidence.

The basic principle which guides appellate review of challenges to the sufficiency of the evidence supporting a criminal conviction is that the conviction will be upheld if, taking the view most favorable to the government, there is substantial evidence fairly tending to support the jury's verdict. Glasser v. United States, 315 U.S. 60, 80, 62 S.Ct. 457, 469, 86 L.Ed. 680 (1942). A long line of decisions in this circuit have expounded upon this basic principle:

In examining this alleged error, under well established principles of review, we must assume the truth of the Government's evidence and give the Government the benefit of all reasonable inferences that logically may be drawn therefrom. United States v. Cox, 580 F.2d 317, 323 (8th Cir. 1978) (cert. denied, 439 U.S. 1075 (99 S.Ct. 851, 59 L.Ed.2d 43) (1979)); United States v. Wisdom, 534 F.2d 1306, 1309 (8th Cir. 1976). We are further guided in our analysis by the general rule that it is not necessary to sustain a conviction that the evidence "exclude every reasonable hypothesis except that of guilt (; it is enough) that it be sufficient to convince the jury beyond a reasonable doubt that the defendant is guilty." United States v. Shahane, 517 F.2d 1173, 1177 (8th Cir.), cert. denied, 423 U. S. 893, 96 S.Ct. 191, 46 L.Ed.2d 124 (1975). The essential elements of the charge may be proved by either direct or circumstantial evidence since circumstantial evidence is intrinsically as probative as direct evidence. United States v. Cox, supra at 323. The jury may not, however, be permitted to convict based upon mere conjecture or to conclude upon pure speculation or from passion, prejudice or sympathy. Curley v. United States, 81 U.S.App.D.C. 389, 392, 160 F.2d 229, 232, cert. denied 331 U.S. 837, 67 S.Ct. 1511, 91 L.Ed. 1850 (1947).

United States v. Knife, 592 F.2d 472, 475 (8th Cir. 1979).

The defendant's contention that the evidence is insufficient to sustain his conviction of second degree murder ⁴ rests primarily on the evidence in the record showing that: (1) Richard Leader Charge, the government's chief witness, testified against the defendant after entering into a plea bargain; ⁵ (2) Richard Leader Charge had the opportunity and motive to kill Gary Stoneman; (3) Richard Leader Charge's testimony contained inconsistencies and inaccuracies; (4) Richard Leader Charge's testimony substantially conflicted with that of the defendant. Thus, the defendant's argument generally can be characterized as an attack on the credibility of Richard Leader Charge. However, this argument misses the mark. "It is not for us to weigh the evidence or to determine the credibility of witnesses." Glasser v. United States, supra, 315 U.S. at 80, 62 S.Ct. at 469. These are matters entrusted to the jury. It is well established that the uncorroborated testimony of an accomplice, unless incredible or insubstantial on its face, is sufficient to sustain a conviction. United States v. Abrahamson, 568 F.2d 604, 607 (8th Cir. 1978).

In the instant case the record amply supports a conclusion that the testimony of Richard Leader Charge is neither patently incredible nor insubstantial. Furthermore, the government produced substantial evidence which not only corroborated the testimony of Richard Leader Charge, but independently supported the jury's conclusion that the defendant killed Gary Stoneman. The physical evidence established that Stoneman was killed by a rifle bullet in the chest. A trail of blood leading from the bedroom window to the body, and the blood in the bedroom clearly indicated that Stoneman was shot in the bedroom. There was not any evidence that a shotgun had been fired in the bedroom. In addition, there was testimony by witnesses other than Richard Leader Charge that the defendant had a grudge against the Stoneman family, suspected Gary Dean Stoneman of being responsible for the defendant's mother's death, and felt that he must get revenge. Remina Eagle Elk, the defendant's sister, testified that after the killing the defendant told her that Stoneman had killed their mother. About the time Stoneman's body was found, the defendant told her that he was handling the case, that he did not want her to talk to other police officers about it, and that she, Richard Leader Charge, and the defendant were in it together, and that if he was blamed he would get the electric chair.

Reviewing all the evidence in this case in the light most favorable to the government, as we must, we find that there was sufficient evidence to support the jury's conclusion that the defendant was guilty of second degree murder beyond a reasonable doubt.

III. Lesser-included Offense Instruction.

A defendant is entitled to an instruction on a lesser-included offense if (1) a proper request is made; (2) the elements of the lesser offense are identical to part of the elements of the greater offense; (3) there is some evidence which would justify conviction of the lesser offense; (4) the proof on the element or elements differentiating the two crimes is sufficiently in dispute so that the jury may consistently find the defendant innocent of the greater and guilty of the lesser included offense; and (5) there is mutuality, i.e., a charge may be demanded by either the...