U.S. v. Martinez

Citation988 F.2d 685
Decision Date04 March 1993
Docket NumberNos. 92-1231,92-1289,s. 92-1231
Parties38 Fed. R. Evid. Serv. 222 UNITED STATES of America, Plaintiff-Appellee, v. Rene C. MARTINEZ, Kenneth W. Noel, and Steven T. Garcia, Defendants-Appellants. , and 92-1338.
CourtUnited States Courts of Appeals. United States Court of Appeals (7th Circuit)

Timothy O'Shea, Madison, WI (argued), for U.S.

Frank M. Tuerkheimer, Lafollette & Sinykin, Madison, WI (argued), for Rene C. Martinez.

Stephen J. Meyer, Vanmetre, Hanson & Meyer, Madison, WI (argued), for Kenneth W. Noel.

Manuel R. Galang, Wauwatosa, WI (argued), for Steven T. Garcia.

Before CUDAHY and COFFEY, Circuit Judges, and FAIRCHILD, Senior Circuit Judge.

FAIRCHILD, Senior Circuit Judge.

Rene C. Martinez, Kenneth W. Noel and Steven T. Garcia, inmates at Oxford prison, a federal correctional institution within the territorial jurisdiction of the United States, were tried before a jury for the death of an inmate and the assault of another. On November 18, 1991, the defendants were found guilty of second-degree murder, 18 U.S.C. § 1111, and assaulting and causing serious injury, 18 U.S.C. § 113(f). Noel additionally was found guilty of possession of weapons by an inmate, 18 U.S.C. §§ 1791(a)(2) & 1791(d)(1)(B). 1 Martinez was sentenced to concurrent terms of 200-months and five years, a five year term of supervised release, and a criminal assessment penalty of $100.00. Noel was sentenced to concurrent terms of 405 months and five years, five years supervised release, and a $200.00 criminal assessment penalty. Garcia was sentenced to concurrent terms of 212 months and five years, five years supervised release, and a $100.00 criminal assessment penalty. In each case the term of imprisonment is consecutive to the term presently being served. On appeal, the defendants raise a number of issues regarding the propriety of their convictions. We affirm.

I.

On April 27, 1991, at approximately 7:45 PM, a fist fight broke out between Martinez and Charles Sammons in the B wing of the Portage House Unit at Oxford prison. Within seconds, inmates from the A and B wing gathered to watch and cheer on the fight. Officer Darren L. Glattfelder was the first guard to arrive on the scene. He stepped between the two men in an effort to stop the fighting. Transcript at 1-B-11. Glattfelder was shorter and lighter than either contestant, and the blows continued. Unable to break it up on his own, Glattfelder depressed his body alarm 2 to notify other correctional officers that a problem had arisen. Glattfelder pushed through the crowd of inmates, making his way to the entrance door of the B wing to meet responding officers. Glattfelder testified at trial that he did not observe any weapons involved at this point in the fight. Tr. at 1-B-10-14.

At the time the fight initially broke out, inmates Garcia and Noel were in the B wing television room. Garcia and Noel joined in the encounter shortly after Glattfelder sounded the alarm. There was testimony that, at this point, Martinez was receiving the brunt of the fight. Garcia, Martinez' roommate, interceded on his behalf. Noel testified that he joined in after observing Brown enter the corridor from his cell and grab Martinez from behind. Whether Brown was an active participant in the fight, or merely an innocent bystander, was contested at trial.

Officers Schirmer, Shy, and Williams and Rec. Specialist Merrill responded to Glattfelder's alarm. As Schirmer and Shy pushed their way through the crowd of the now approximately fifty inmates that had gathered, Glattfelder, Williams and Merrill directed the crowd of inmates to their cells. Upon their arrival, Schirmer and Shy observed Martinez and Garcia continually punch and kick Sammons and Brown as the two lay on the hallway floor. Sammons and Brown offered no resistance then or during the remainder of the encounter. At the same time, Noel held back the officers by holding up a "shank." The shank was described as an ice pick-type knife consisting of a blade approximately six to eight inches long attached to a black handle. Tr. at 1-B-112. The officers observed that Noel was highly agitated and was yelling for the officers to stay back. Tr. at 1-B-113. Despite the officers' demands to drop the shank, Noel proceeded to stab the victims a number of times, then turned around and yelled, "Stay back. When we're through with him, you can have him." Tr. 2-B-41, 137. At the same time, Martinez and Garcia switched back and forth between the two victims as they continued to kick and beat them. There was testimony that at one point Martinez' shoe was caught in Brown's mouth. The officers continued to order the defendants to stop and Schirmer approached the inmates with a mop wringer--however, the attack on Sammons and Brown continued. Eventually, Martinez, Noel, and Garcia voluntarily ceased the attack and returned to their cells in the immediate area.

Both the ownership and use of the shank during the encounter remain unclear. The evidence clearly demonstrated that Noel struck both Sammons and Brown with the shank. While there was no direct testimony demonstrating that either Martinez or Garcia used the shank, witnesses testified that they observed Garcia making a thrusting motion with his fist as he knelt over Sammons. Additionally, inmate Margiotta testified that while Noel stabbed Sammons, Martinez held him down and continually struck him in the face. Tr. at 2-A-55, 56. Inmate Cummings also testified that both Martinez and Garcia were "rolling" Sammons while Noel stabbed him. Tr. at 2-A-157-58. This testimony was buttressed by Williams, who testified that he observed either Garcia or Martinez "uncurl" or "open" Sammons as Noel stabbed him.

None of the evidence adduced at trial demonstrated that Martinez or Garcia brought the shank to the fight. Whether Noel initially introduced the shank, or whether Brown brought it and Noel retrieved it from him, was contested at trial. The testimony did tend to show that Martinez and Garcia took the shank with them when they went back to their cells and flushed it into the sewer line, along with pieces of torn sweat clothing. On April 28, a day after the incident, these items were extracted from the sewer in approximately the same location as Martinez' and Garcia's cell. Tr. at 1-B-73. The clothing was similar to that which Martinez wore at the time of the encounter, but was not wearing later that evening.

Both Sammons and Brown were taken for medical treatment. Sammons died shortly thereafter. Dr. Robert Huntington, the pathologist, established that the cause of death was from one of two stab wounds out of the approximately 27 wounds found on Sammons' body (a number of which entered from the back). One of the apparently fatal wounds entered the left side of Sammons' head, continued across through the brain and down into the bone over the right eye. The other wound entered the back and severed the pulmonary vein. Brown suffered from serious injuries, including approximately five stab wounds, a broken jaw, and a loss of five teeth. As a result of the beating, Brown has impaired perception, cannot chew properly and has lost the feeling in the lower part of his mouth. Tr. 2-B-110, 111. The defendants stipulated that Brown's injuries were serious.

At trial, detailed testimony concerning these events was given by numerous witnesses. The estimates of elapsed time during the fight vary; the longest estimate approximately ten minutes. The episode can be summarized as follows: initially, there was a fistfight between Sammons and Martinez. Garcia came to the aid of Martinez, and then Brown seems to have joined to help Sammons, although he was unable to remember at trial how he became involved. Noel next joined the encounter to help Martinez and Garcia and, shortly thereafter, Sammons and Brown were down and offering little or no resistance. During most of the time that the officers were on the scene, Martinez and Garcia were kicking and punching Sammons and Brown, alternating between them. Noel stabbed Sammons more than 27 times, and Brown received five stab wounds.

On June 19, 1991, an indictment was returned against the three defendants. Count I charged all three defendants with first degree murder of Sammons; Count II with assault of Brown, resulting in serious bodily injury; and Counts III and IV each charged Noel with possession by an inmate of an object designed and intended to be used as a weapon. The "object" in Count III apparently was the shank used to stab Sammons and Brown. Although some of the claims of error, particularly by Noel, relate to Count II, all defendants assign error with respect to Count I.

Under Count I, Judge Shabaz submitted forms of verdict on first degree murder, as charged, and also on second degree murder and voluntary manslaughter as lesser included offenses. One element peculiar to first degree murder in the circumstances of this case is premeditation. The jury acquitted defendants of first degree murder, apparently finding no premeditation. A second element, common to first and second degree murder, is "malice aforethought", principally dealt with in the parties' arguments in terms of "intent." 18 U.S.C. § 1111. Manslaughter is the unlawful killing of a human being without malice, and it is punished as voluntary manslaughter if "upon a sudden quarrel or heat of passion." 18 U.S.C. § 1112(a). The defendants argued at trial, echoed here, that they had no premeditated design to kill, and that the events proceeded at so fast a pace that they had no opportunity to, and did not, form the intent equivalent to malice aforethought. The government argued that there was ample time. The jury found all three defendants guilty of second degree murder, thus finding malice aforethought.

The district judge additionally instructed on the elements of self-defense, including defense of another. On appeal, none of the defendants seriously contends that they acted in self-defense,...

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