U.S. v. Birch, 93-3348

• Decision Date: 03 November 1994
• Docket Number: No. 93-3348,93-3348
• Citation: 39 F.3d 1089
• Court: U.S. Court of Appeals — Tenth Circuit
• Parties: 41 Fed. R. Evid. Serv. 321 UNITED STATES of America, Plaintiff-Appellee, v. Bernard C. BIRCH, Jr., aka Chubby, Defendant-Appellant.

Page 1089

39 F.3d 1089

41 Fed. R. Evid. Serv. 321

UNITED STATES of America, Plaintiff-Appellee, v. Bernard C. BIRCH, Jr., aka Chubby, Defendant-Appellant.

No. 93-3348.

United States Court of Appeals Tenth Circuit.

Nov. 3, 1994.

Cyd Gilman, Asst. Federal Public Defender for the Dist. of Kansas, Wichita, KS, for defendant-appellant.

Kim M. Fowler (Randall K. Rathbun, U.S. Atty., with her on the brief), Asst. U.S. Atty., Dist. of Kansas, Kansas City, KS, for plaintiff-appellee.

Before TACHA, LOGAN, and EBEL, Circuit Judges.

TACHA, Circuit Judge.

Bernard C. Birch, Jr. was convicted by a jury of assault on a federal officer and possession of a firearm during a violent crime. He appeals both his convictions and his sentence. Defendant alleges in his appeal that the district court erred in (1) allowing the prosecution to conduct a demonstration during cross-examination of defendant, (2) admitting evidence of defendant's prior convictions under Federal Rule of Evidence 404(b), and (3) assessing two criminal history points for each of two prior juvenile convictions of defendant. This court has jurisdiction under 28 U.S.C. Sec. 1291 and 18 U.S.C. Sec. 3742 and affirms.

I. Background

On April 28, 1993, Special Agent Randy O'Dell of the Bureau of Alcohol, Tobacco and Firearms, and Lieutenant Aaron Harrison of the Wichita Police Department were conducting surveillance of a residence occupied by defendant's girlfriend and their two children from Agent O'Dell's unmarked car. The officers observed defendant arrive at and enter the house. Defendant was driven to the house by a friend; several other friends accompanied him as well. After checking on the well-being of the occupants, defendant left the residence. Rather than leave with the friend who had brought him to the house, defendant drove away in his girlfriend's car, which had been parked in the driveway.

Meanwhile, the officers drove by the house, circled the block, and followed defendant's vehicle as he left the house. When defendant noticed he was being followed, he turned his car around and drove back towards the officers' car. As the cars passed one another, a shot was fired from defendant's car, wounding Agent O'Dell.

Defendant fled the scene in the vehicle from which the shot was fired. Agent O'Dell and Lieutenant Harrison gave chase, calling other units in as back-up. Two to three minutes later, defendant lost control of his vehicle and crashed the car into a tree. He fled on foot and was apprehended shortly thereafter.

After his arrest and at trial, defendant claimed that, although he was driving the car at the time of the shooting, there was a passenger in the car who fired the shot that wounded Agent O'Dell. According to defendant, this individual ¹ leaped from the car during the car chase, leaving his weapon in the car with defendant.

Defendant testified in his own defense at trial. On cross-examination by the prosecution, and over defense counsel's objection, defendant was asked to demonstrate his version of the shooting. Two courtroom chairs were placed side by side, simulating the front seat of the car, and defendant was asked to show how the shooting occurred. During this demonstration, the prosecutor asked defendant to show the jury the position of the gun when it was fired. The prosecution then called witnesses who testified that defendant's version of the shooting was impossible. These witnesses testified that a bullet fired from a gun in the position demonstrated by defendant could not possibly have the trajectory of the bullet that wounded Agent O'Dell.

II. Courtroom Demonstration

This court examined the use of demonstrative evidence that purports to reenact events at trial in United States v. Wanoskia, 800 F.2d 235 (10th Cir.1986). In Wanoskia, a defendant on trial for murdering his wife maintained that his wife had shot herself. Id. at 236-37. The prosecution attempted to discredit the defendant's story by showing that it would have been impossible for the victim to shoot herself. The medical examiner testified that, based on the powder burns on the victim, the fatal shot was fired from approximately eighteen inches from the victim. Id. at 237. The prosecution then presented a demonstration to show that the victim could not have shot herself from this distance. Id. at 236.

Recognizing the highly persuasive nature of evidence purporting to reenact actual events, we declared in Wanoskia that the trial court "must take special care to ensure that the demonstration fairly depicts the events at issue." Id. at 238 (citation omitted). To ensure that such care is taken by trial courts, we announced a threshold requirement for the admission of demonstrative evidence, which we adopted from the Jackson v. Fletcher standard for experimental evidence:

"Where ... an experiment purports to simulate actual events and to show the jury what presumably occurred at the scene ..., the party introducing the evidence has a burden of demonstrating substantial similarity of conditions. They may not be identical but they ought to be sufficiently similar so as to provide a fair comparison."

Wanoskia at 238 (quoting Jackson v. Fletcher, 647 F.2d 1020, 1027 (10th Cir.1981)).

Despite this threshold requirement for admissibility, "a trial court's decision to admit or exclude such evidence will be reversed only if the court abused its discretion." Wanoskia, 800 F.2d at 238 (citation omitted). We therefore review the district court's decision to allow the demonstration with deference.

The purpose of the demonstration in the instant case was to illustrate and clarify testimony already given by defendant on direct examination. Defendant himself participated in the demonstration. Courtroom chairs were used to simulate seating in the car; defendant sat in one chair while an ATF agent sat in the other. Defendant demonstrated his version of the events. Nothing in the record indicates that the jury was led to believe that the chairs represented anything other than the car seats. Moreover, the defense could have conducted a redirect examination to correct any part of the demonstration that was potentially misleading to the jury. Although only a limited foundation was laid by the prosecution, the prosecution nonetheless met its burden of demonstrating substantial similarity between the courtroom demonstration and the seating in defendant's car.

Defendant's argument that the demonstration here is similar to that found improper in Jackson v. Fletcher fails. In Jackson, the evidence at issue was testimony describing the results of an out-of-court reenactment of a vehicle accident. We found this evidence unduly prejudicial because the experiment lacked a substantial similarity of circumstances. Id. at 1026-28. Here, in contrast, the evidence consisted of an in-court demonstration by defendant that was sufficiently similar to actual events to provide a fair comparison.

Defendant argues that the district court's failure to take the protective measures taken by the district court in Wanoskia resulted in unfair prejudice to defendant. In Wanoskia, we noted with approval that the trial court had first viewed the demonstration outside the presence of the jury and that the jury was instructed to disregard the demonstration if it determined that the testimony lacked an adequate foundation. Wanoskia 800 F.2d at 239. In the instant case, however, the defense neither requested that the court view the demonstration outside the jury's presence nor requested that a limiting instruction be given to the jury. As a result, the defense cannot now allege that the trial court erred in failing to take these steps. See Robinson v. Audi NSU Auto Union, 739 F.2d 1481, 1485 (10th Cir.1984).

The courtroom demonstration, combined with the testimony regarding the bullet's trajectory, was indeed damaging to the defense. Evidence that is prejudicial to the defense is inadmissible, however, only if its probative value is substantially outweighed by its unfair prejudice to the defendant. See Fed.R.Evid. 403. ² We conclude that the district court did not abuse its discretion in allowing the prosecution to conduct the demonstration using courtroom chairs to represent the front seat of defendant's car.

III. Rule 404(b) Evidence

Defendant also alleges that the district court erred in allowing the prosecution to present evidence of defendant's two previous convictions for battery on a law enforcement officer. Defendant argues that this evidence was inadmissible under Federal Rule of Evidence 404(b). We review the district court's decision to admit evidence under Rule 404(b) for an abuse of discretion. United States v. Record, 873 F.2d 1363, 1373 (10th Cir.1989).

Rule 404(b) governs the admissibility of evidence of other criminal acts of the defendant:

Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.

The district court must make a threshold determination that the offered evidence is " 'probative of a material issue other than character' " before admitting evidence under Rule 404(b). United States v. Martinez, 890 F.2d 1088, 1093 (10th Cir.1989) (quoting Huddleston v. United States, 485 U.S. 681, 686, 108 S.Ct. 1496, 1499, 99 L.Ed.2d 771 (1988)), cert. denied, 494 U.S. 1059, 110 S.Ct. 1532, 108 L.Ed.2d 771 (1990).

In order to aid the district court's determination of whether evidence is offered to prove an issue other than character, the government must precisely articulate the purpose of the proffered evidence. United States v. Kendall, 766 F.2d 1426, 1436 (10th Cir.1985), cert. denied, 474 U.S. 1081, 106 S.Ct. 848, 88 L.Ed.2d 889 (1986); see also United States v. Porter, 881 F.2d 878, 884 (10th Cir.), cert. denied, 493 U.S. 944, 110...