U.S. v. Benally, 96-2291

• Decision Date: 24 June 1998
• Docket Number: No. 96-2291,96-2291
• Citation: 146 F.3d 1232
• Parties: UNITED STATES of America, Plaintiff--Appellee, v. Arvin BENALLY, Defendant--Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 1232

146 F.3d 1232

UNITED STATES of America, Plaintiff--Appellee, v. Arvin BENALLY, Defendant--Appellant.

No. 96-2291.

United States Court of Appeals Tenth Circuit.

June 24, 1998.

John Van Butcher, Assistant Federal Public Defender, Albuquerque, New Mexico, for the Defendant--Appellant.

Mary Catherine McCulloch, Assistant United States Attorney (John J. Kelly, United States Attorney, with her on the brief), Albuquerque, New Mexico, for the Plaintiff--Appellee.

Before BRISCOE, McWILLIAMS and LUCERO, Circuit Judges.

LUCERO, Circuit Judge.

Arvin Benally appeals his conviction of voluntary manslaughter, arguing that the district court erroneously failed to instruct the jury on self-defense and involuntary manslaughter, and wrongly denied two motions to suppress evidence. We agree that the record reveals evidence upon which a reasonable jury could have acquitted defendant on the basis of self-defense, or, alternatively, found him guilty of involuntary manslaughter. Consequently, we reverse and remand for a new trial. ¹

I

On the night of October 3, 1995, Jonathan Benally, Arvin Benally, Rodrick Benally, Cheryl Largo and Christina Talk gathered near Arvin's home to talk, drink, and listen to music. After Jonathan and Arvin left to purchase a half pint of whiskey, Russell John joined the group. Following Jonathan and Arvin's return, Russell offered them $20 to purchase additional beer. Told the liquor stores were closed, Russell offered to obtain marijuana instead and left. According to Rodrick Benally, Jonathan then proposed that "if he doesn't come back with the marijuana ... we should take that $20 from him," R., Vol. X, at 120, and Arvin agreed.

Accounts differ as to what transpired when Russell returned without the marijuana. Rodrick testified that Jonathan and Arvin were upset, and that Jonathan refused to accept Russell's excuses and threw him to the ground "for no reason." Id. at 123. According to Rodrick, Russell then knocked Jonathan to the ground and suddenly punched Arvin in the face, knocking his glasses off and drawing blood. Arvin testified that he was struck as he attempted to break up the fight between Jonathan and Russell. He also stated that Russell's blow caused him to black out momentarily.

The testimonies of Rodrick and Arvin also conflict in their account of the subsequent melee. We summarize Rodrick's testimony first. According to Rodrick, Jonathan tackled Russell, sat on him, and punched him repeatedly in the face. Arvin kicked Russell in the head and side and was restrained by Rodrick. Jonathan then renewed his attack, "kicking [Russell] side to side and ... in the groin area." Id. at 131. Pulling down Russell's pants, Jonathan again kicked him in the groin. Arvin then hit Russell in the face, and was restrained once more. During cross-examination, Rodrick testified that Arvin had struck Russell no more than four times during the fight. As Arvin and Rodrick were looking for Arvin's glasses, Jonathan cut and stabbed Russell's buttocks and kicked him again. The group then abandoned Russell and agreed to lie about their whereabouts that night. ² Later that night when Arvin and Rodrick returned to search for the missing glasses, Arvin stated he wanted to strike Russell because "[t]hat son of a bitch hit me," id. at 146, but he was stopped by Rodrick.

By Arvin's account, his role in the fight was minimal. After being struck by Russell as he attempted to break up the fight, he could not see because his glasses had been knocked from his face and it was dark. He then "pushed and shoved" Jonathan and Russell to keep them away from him, R., Vol. XI, at 312, and began looking for his glasses before retreating to a pickup truck. He could not see what transpired in the fight between Jonathan and Russell. Though he admitted striking Russell in response to Russell's punch, Arvin stated that he only did so because he "didn't want to get hit again." Id. at 324. He denied intent to hurt or kill anyone.

Russell's body was discovered the next morning. Arvin was charged with first degree murder in violation of 18 U.S.C. §§ 1153 ³ and 1111(a). He was also charged with aiding and abetting first degree murder in violation of 18 U.S.C. § 2. The district court instructed the jury as to first degree murder and the lesser included offenses of second degree murder and voluntary manslaughter. Over defense objection, the court refused to instruct on either self-defense or involuntary manslaughter. The jury returned a verdict of guilty as to voluntary manslaughter.

II

Defendant appeals the district court's decision denying his requested instruction on self-defense. It is well established that "a defendant is entitled to an instruction as to any recognized defense for which there exists evidence sufficient for a reasonable jury to find in his favor." Mathews v. United States, 485 U.S. 58, 63, 108 S.Ct. 883, 99 L.Ed.2d 54 (1988). Had the jury credited Arvin's account of the fight, they could properly have concluded that Arvin acted in self-defense. By his account, Russell struck him first, causing him to black out momentarily. He further testified that from that point on, his actions were solely intended to prevent being hit again. If Arvin's testimony were credited, the jury could reasonably have believed that the force Arvin used in self-defense was reasonable in light of the threat presented. ⁴ Consequently, the district court erred in denying the requested instruction.

III

We next consider defendant's challenge of the district court's failure to charge the jury on the lesser included offense of involuntary manslaughter. Although "[t]he decision of whether there is enough evidence to justify a lesser included offense charge rests within the sound discretion of the trial judge," United States v. Chapman, 615 F.2d 1294, 1298 (10th Cir.1980) (citing United States v. Busic, 592 F.2d 13 (2d Cir.1978)), a defendant is entitled to such an instruction if:

(1) there was a proper request; (2) the lesser included offense includes some but not all of the elements of the offense charged; (3) the elements differentiating the two offenses are in dispute; and (4) a jury could rationally convict the defendant of the lesser offense and acquit him of the greater offense.

United States v. Moore, 108 F.3d 270, 272 (10th Cir.1997). If these four factors are satisfied, the trial court is required to provide the requested instruction. See United States v. Duran, 127 F.3d 911, 914-15 (10th Cir.1997). Only if we are convinced that the evidence presented at trial is such that a rational jury could acquit on the charged crime but convict on the lesser included offense may the denial of the requested instruction be reversed. See Moore, 108 F.3d at 272 (citing Keeble v. United States, 412 U.S. 205, 93 S.Ct. 1993, 36 L.Ed.2d 844 (1973)); see also Keeble, 412 U.S. at 208, 93 S.Ct. 1993 ("[I]t is now beyond dispute that the defendant is entitled to an instruction on a lesser included offense if the evidence would permit a jury rationally to find him guilty of the lesser offense and acquit him of the greater.") (emphasis added).

It is undisputed that defendant properly requested a jury instruction on involuntary manslaughter, see R., Vol. XII, at 401-02, and involuntary manslaughter is a lesser included offense of the offense charged, see United States v. Skinner, 667 F.2d 1306, 1309 & n. 1 (9th Cir.1982). The issue for us to decide is whether a rational jury could not have convicted defendant of involuntary manslaughter while acquitting him of voluntary manslaughter.

Involuntary manslaughter is defined as the "unlawful killing of a human being without malice ... [i]n the commission of an unlawful act not amounting to a felony, or in the commission in an unlawful manner, or without due caution and circumspection, of a lawful act which might produce death." 18 U.S.C. § 1112(a). Defendant claims that because Russell was the initial aggressor, he was entitled to an involuntary manslaughter instruction based on imperfect self-defense--i.e., that Russell died as a consequence of a lawful act committed in an unlawful manner. Alternatively, he insists his actions on the night of Russell John's death could be characterized as misdemeanor assault resulting in death, thus constituting involuntary manslaughter. We consider these arguments.

A

Defendant's first contention is that a reasonable jury could have found that he negligently caused Russell's death while acting in self-defense. He argues that an involuntary manslaughter instruction was warranted because he attempted to use nondeadly force, but did so in a criminally negligent manner and death resulted. See United States v. Begay, 833 F.2d 900, 901 (10th Cir.1987).

As discussed in the preceding section, a rational jury could have believed Arvin's actions were in self-defense. This court has recognized that involuntary manslaughter "can occur in circumstances that would support a defense of self defense." Begay, 833 F.2d at 901 (quoting United States v. Manuel, 706 F.2d 908, 915 (9th Cir.1983)); see also United States v. Browner, 889 F.2d 549, 555 (5th Cir.1989) (holding that both involuntary manslaughter and self-defense instructions are proper when there is evidence that the killing was accidental); United States v. Iron Shield, 697 F.2d 845, 848 (8th Cir.1983) (upholding district court's decision to instruct on both involuntary manslaughter and self-defense). "If the defendant attempts to use nondeadly force, [but does so in a manner that results in death], then both involuntary manslaughter and self-defense instructions would be warranted." Begay, 833 F.2d at 901 (quoting Manuel, 706 F.2d at 915). The jury could have concluded from the evidence presented at trial that Arvin's actions constituted the criminally negligent exercise of nondeadly force. Consequently, it was error for the district court to refuse to instruct the jury on this theory of involuntary manslaughter.

B

Al...