U.S. v. Bedonie

• Citation: 913 F.2d 782
• Decision Date: 24 August 1990
• Docket Number: 88-2649,Nos. 88-2648,s. 88-2648
• Parties: 31 Fed. R. Evid. Serv. 642 UNITED STATES of America, Plaintiff-Appellee, v. Vinton BEDONIE and Thomas Cly, Defendants-Appellants.
• Court: United States Courts of Appeals. United States Court of Appeals (10th Circuit)

Page 782

913 F.2d 782

31 Fed. R. Evid. Serv. 642

UNITED STATES of America, Plaintiff-Appellee, v. Vinton BEDONIE and Thomas Cly, Defendants-Appellants.

Nos. 88-2648, 88-2649.

United States Court of Appeals,

Tenth Circuit.

Aug. 24, 1990.

David J. Schwendiman, Asst. U.S. Atty. (Dee Benson, U.S. Atty., and Stewart C. Walz, Asst. U.S. Atty., with him on the briefs), Salt Lake City, Utah, for plaintiff-appellee.

Susan L. Foreman, Asst. Federal Public Defender (Michael G. Katz, Federal Public Defender, with her on the briefs), Denver, Colo., for defendant-appellant Vinton Bedonie.

Edward K. Brass, Salt Lake City, Utah, for defendant-appellant Thomas Cly.

Before TACHA, BALDOCK and BRORBY, Circuit Judges.

BRORBY, Circuit Judge.

Defendants-appellants appeal their convictions on two counts of first degree murder in violation of 18 U.S.C. Secs. 1111(a), 1153 and 2, and on two counts of using and carrying a firearm in relation to a crime of violence in violation of 18 U.S.C. Secs. 924(c), 1153 and 2.

On the morning of December 5, 1987, passers-by discovered two burned-out and still smoldering Navajo police vehicles ("the panels") in a remote area ("Copper Canyon") of the Navajo Indian Reservation in the southeast corner of Utah. The charred remains of two men, later identified as Navajo police officers Roy Lee Stanley and Andy Begay, were found inside one of the panels.

On April 28, 1988, four Navajo Indians--Thomas Cly, Vinton Bedonie, Ben Atene, Jr. ¹ and Marques Atene ²--were each indicted on two counts of first degree murder in the deaths of Stanley and Begay (counts I and II) and two counts of using a firearm in connection therewith (counts III and IV). Specifically, counts I and II charged that appellants

did commit murder in the first degree, in that said defendants unlawfully and with malice aforethought did kill [Roy Lee Stanley and Andy Begay] and did willfully aid, abet, counsel, command, induce, and procure, said killing, by willfully, deliberately, maliciously and premeditatedly murdering said victim and committing said murder in the perpetration of and the attempt to perpetrate arson, escape and murder, by means of setting fire to a truck in which said [victims were] placed after having been shot; all in violation of 18 U.S.C. Secs. 1111(a), 1153 and 2.

Trial to a jury commenced July 18, 1988. Dr. Thomas Henry, the government's expert in forensic pathology who performed the postmortem examination of the victims' remains, testified as to the results of his examinations and, based upon those results, expressed his opinion that "Mr. Stanley ... died of smoke inhalation and thermal burns" and that "Mr. Begay died of smoke inhalation and thermal burns."

The testimony of the government's key witnesses to the events leading up to the deaths of Begay and Stanley--Marie Haycock, Martha Chee, Boyd Atene, Raymond Fatt and Julius Crank--revealed that a bonfire party had taken place the night of December 4, 1987. The witnesses saw both appellants at the bonfire. According to Haycock, Chee and Boyd Atene, Officer Stanley arrived at the scene of the bonfire, got out of his police panel, was confronted by appellant Cly, and then was ultimately subdued and handcuffed after a fight involving Cly, appellant Bedonie and Ben Atene, Jr. Haycock, Chee and Boyd Atene each testified that they heard either one or two gunshots after the fight and both Haycock and Boyd Atene saw Bedonie carrying a gun. Boyd Atene testified that, after Stanley had been overcome, Bedonie told Boyd to walk with Bedonie to Stanley's panel. Boyd complied and, after Bedonie opened the driver's side door for him, Boyd got in the panel and Bedonie closed the door.

Haycock, Chee and Boyd Atene testified that Andy Begay arrived shortly thereafter at the bonfire in his police panel. They then heard one or two more gunshots. Haycock testified that she saw Bedonie come up behind Begay, point a gun at him and walk Begay behind his vehicle before she heard the gunshot. Haycock and Chee then left the bonfire scene.

Boyd Atene testified that Cly then got into his own pickup truck, and Bedonie got in on the passenger side of the panel in which Boyd was seated. Bedonie then directed Boyd to drive Stanley's panel away from the bonfire scene and to follow Ben Atene, Jr.'s truck. Boyd and Bedonie were followed in the caravan by Begay's panel.

Boyd Atene testified that the panels were eventually driven down into Copper Canyon until the panel Boyd was driving became stuck in the mud. After trying unsuccessfully to drive the panel out of the mud, Boyd walked away from the truck. Boyd saw Cly and Cly's truck at the Copper Canyon scene. After Bedonie's efforts to free the one panel failed, the second police panel was parked near the first. Boyd testified that appellants became very busy around the police vehicles and that he saw Bedonie take things out of the panels and throw them onto a mesa. Boyd then watched Cly pour gasoline from a five-gallon gas can inside and outside the panels. Boyd saw appellants stand a couple of feet away from the panels and then he saw "a flame of fire." Shortly, there was "a big flame" and the panels were burning. The bodies of Stanley and Begay were found in one of these panels.

The government also presented physical evidence and other testimony tending to corroborate the testimony of Boyd Atene and the other principal witnesses. For example, Boyd testified that officer Stanley was wearing glasses when Stanley arrived at the bonfire scene. A pair of eyeglasses found at the bonfire scene was identified by Stanley's wife as her husband's glasses. The frame, prescription and tint of the glasses matched those of the glasses sold to Stanley in a shop in Flagstaff, Arizona. In addition, Rosie Cly, a Navajo woman who lived near the bonfire site, testified that she heard what sounded like four gunshots coming from that area the night of the murders. Ronald Duncan, the government's expert on forensic chemistry and arson, testified that in his opinion, based upon the distance between the two panels at the Copper Canyon site and the extent to which the vehicles were burned, the fire did not start accidentally and an accelerant was probably used to light the fire.

Both appellants presented an alibi defense. Appellant Bedonie testified that he was at the home of his mother and stepfather, Lilly and Ben Atene, Sr., from about 10 p.m. the night of December 4, 1987, through the following morning. A number of witnesses testified in his behalf that a special Navajo ceremony was performed at the Atene home during the night of December 4 and the early morning of December 5 and that they saw Bedonie at the Atene home during the night. Bedonie denied that he had been at the bonfire or at Copper Canyon. Appellant Cly testified that he was not involved in the killing of either officer and that he spent the evening drinking, watching TV and doing some off-road driving.

Closing arguments were concluded on July 28, 1988. On August 2, 1988, after five days of deliberation, the jury returned a verdict of guilty on all counts charged against appellants. Specifically as to counts I and II of the indictment, the jury found:

[W]e ... find the Defendant, Thomas Cly, (1) guilty as to Count I, murder in the first degree of Roy Lee Stanley, (2) guilty as to Count II, murder in the first degree of Andy Begay....

As to Defendant, Vinton Bedonie, we ... find the Defendant ... (1) guilty as to Count I, murder in the first degree of Roy Lee Stanley, (2) guilty as to Count II, murder in the first degree of Andy Begay.... Dated August 1st, 1988.

The court polled the individual jury members and each juror indicated his/her agreement with the verdict as to each count. Appellants were each sentenced to two concurrent terms of life imprisonment on counts I and II, one five-year term of imprisonment on count III to run consecutively with the sentence imposed as to counts I and II, and one five-year term on count IV to run consecutively with the sentence imposed as to counts I, II and III.

Mr. Bedonie appeals his conviction on the following two bases: (1) The trial court lacked jurisdiction to try appellant for first degree murder committed in the perpetration of arson; and (2) appellant was deprived of his right to a unanimous verdict. Appellant Cly joins in the arguments made by appellant Bedonie.

Mr. Cly appeals his conviction on the following five bases: (1) Appellant's Sixth Amendment rights were violated in that the jury was selected from a venire in which Native Americans were underrepresented; (2) appellant's Fourteenth Amendment rights were violated through the use of a peremptory challenge to remove the only partial Native American from the jury; (3) the district court erred in denying appellant's challenges "for cause" of four venire persons; (4) the failure to exclude incompetent government witnesses was reversible error, and the failure to exclude their irrelevant testimony was an abuse of discretion by the district court; and (5) the district court erroneously admitted evidence of the appellant's character for honesty. Appellant Bedonie adopts by reference all arguments made by appellant Cly as they may apply to Mr. Bedonie.

I

Appellants first argue that "the trial court lacked jurisdiction to try [appellants] for first-degree murder committed in the perpetration of arson." The relevant jurisdictional statute, 18 U.S.C. Sec. 1153, provides:

Offenses committed within Indian country

(a) Any Indian who commits against the person or property of another Indian or other person any of the following offenses, namely, ..., arson, ... shall be subject to the same law and penalties as all other persons committing any of the above offenses, within the exclusive jurisdiction of the United States.

(b) Any offense referred to in subsection (a) of this section that is not defined and punished by Federal law in force within the exclusive jurisdiction of the United...