833 F.2d 156 (9th Cir. 1987), 86-3075, United States v. Lesina

Docket Nº:86-3075.
Citation:833 F.2d 156
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Anthony Darrell LESINA, Defendant-Appellant.
Case Date:November 27, 1987
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit
 
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Page 156

833 F.2d 156 (9th Cir. 1987)

UNITED STATES of America, Plaintiff-Appellee,

v.

Anthony Darrell LESINA, Defendant-Appellant.

No. 86-3075.

United States Court of Appeals, Ninth Circuit

November 27, 1987

Argued and Submitted May 6, 1987.

William W. Youngman, Asst. U.S. Atty., Portland, Or., for plaintiff-appellee.

Stephen R. Sady, Federal Public Defenders Office, Portland, Or., for defendant-appellant.

Appeal from the United States District Court for the District of Oregon.

Before ANDERSON, TANG and NOONAN, Circuit Judges.

TANG, Circuit Judge:

Defendant Anthony Darrell Lesina appeals a conviction of second degree murder.

Page 157

Lesina argues that the district court's jury instructions deprived him of his Fifth Amendment guarantee of due process. We agree, reverse and remand for a new trial.

I

Lesina lived with Marvena Meanus, his fiancee, and Elarrio Medina, his best friend and Meanus' cousin, in a house on the Warm Springs Indian Reservation in Oregon. Lesina and Meanus had been living together for over a year, and had a baby who was only a few days old at the time of the incident. On the morning of December 12, 1985, Lesina, Medina and Meanus did some bead work, and smoked some marijuana. Later, the two men worked on Lesina's car and, at around 3:00 p.m., took it for a drive. Lesina told Meanus that he and Medina were going to talk to a customer about some bead work that Lesina had done. While driving around the reservation, Lesina and Medina bought and consumed four forty-ounce bottles of beer between 3:00 and 4:00 p.m. After the pair consumed the last bottle of beer, Lesina's car broke down. Lesina and Medina got a ride back to the house from Lesina's mother. Upon arriving at the house, Lesina and Medina entered through the back door. Medina went into the living room. Lesina went into the kitchen, where Meanus was chopping vegetables with an eight-inch kitchen knife. Lesina and Meanus spoke briefly about the car trouble and Lesina told Meanus that he had been unable to collect from the customer for the bead work. Meanus responded that Lesina should not to be so impatient. Lesina accused Meanus of impatience and of calling their baby bad names. Meanus denied this accusation and the argument escalated. Lesina then struck Meanus on the side of the head with his closed fist, and challenged Meanus to use the knife on him. Meanus testified that she thought she could scare him by holding the knife in her hand. Lesina pushed Meanus to the floor and a struggle ensued, with Lesina beating Meanus repeatedly about the face and holding her by the throat. The knife fell from Meanus' grasp.

Medina rushed into the kitchen in an apparent attempt to break up the fight. At this point, the facts blur. Meanus testified before the grand jury that Lesina stood, faced Medina, and made a pushing motion. At trial, however, Meanus testified that she did not see Lesina "do anything aggressive" toward Medina. Lesina testified that he grabbed the knife from Meanus' grasp, and yanked it upwards and away when Medina suddenly jumped on top of him.

The knife penetrated Medina's heavy leather winter jacket and chest wall, severed one of his ribs and nicked another, pierced his lung and heart, and pierced his spinal cord. The wound was seven and one-half inches deep. Medina staggered out of the house and collapsed in the snow. Medina died that night at the hospital. One hour after the stabbing, Lesina was placed under arrest and submitted to a blood alcohol test which revealed a .17 percent blood alcohol level.

A Bureau of Indian Affairs investigator interviewed Lesina that evening. Lesina stated that he picked up the knife after all three people had fallen to the floor and attempted to throw it back over his head, whereupon Medina apparently collided with it. When interviewed the next day, Lesina stated that Medina was rushing into the room when he collided with the knife. At all times Lesina told investigators that the killing had been an accident.

A Grand Jury indicted Lesina on December 17, 1985 for killing Medina with malice aforethought in violation of 18 U.S.C. Sec. 1111. At trial, expert testimony established that the wound was equally consistent with Lesina's testimony and Meanus' grand jury testimony. The prosecutor made the following remarks at closing argument:

[Malice aforethought means] number one, intent, but it also has a second definition. And that is the definition that fits here and that is acts done in callous and reckless disregard. Not intentional acts. And I have not once told you that the Government is proceeding in this case on intentional acts because we're not. We're proceeding in this case on

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the prong of malice aforethought which is a series, an act or series of acts done in callous and reckless disregard for the consequences.

Lesina submitted several proposed instructions that the district court declined to read. One stated in part:

If the resultant death was merely accidental or the result of a misadventure or due to simple negligence, or an honest error of judgment, ... you must vote to acquit the defendant.

Another read:

In order to establish malice aforethought, the government must prove to you beyond a reasonable doubt that the incident did not occur upon a sudden quarrel or heat of passion.

The district court instructed the jury on second degree murder, voluntary manslaughter, and involuntary manslaughter. The instructions read in part:

In order for defendant Lesina to be found guilty of the crime of murder in the second degree, the Government must prove.... the defendant killed Elarrio Antone Medina with malice aforethought.... To kill with malice aforethought means either to deliberately and intentionally kill another person or to act with callous and reckless disregard for human life....

In order for defendant Lesina to be found guilty of the crime of voluntary manslaughter, the Government must prove ... that defendant Lesina acted in the heat of passion or upon a sudden quarrel....

In order for defendant Lesina to be found guilty of the crime of involuntary manslaughter, the Government must prove.... that defendant Lesina acted without malice, but with wanton or reckless disregard for human life.

(Emphasis added).

Defense counsel took exception to the district court's instructions:

This--the act of callous or reckless disregard for human life. How is the jury going to differentiate between that and involuntary manslaughter which is wanton and reckless misconduct.

The court declined to alter the language that defense counsel found objectionable. During deliberations, the jury sent a note to the judge requesting further instructions clarifying the distinction between voluntary manslaughter and second degree murder. The judge declined to provide further instructions. On March 3, 1986, the jury found Lesina guilty of second degree murder. The court sentenced Lesina on April 21, 1986, to a sentence of ten years incarceration.

II

The district court...

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