U.S. v. Blue Thunder

• Decision Date: 09 October 1979
• Citation: 604 F.2d 550
• Parties: 4 Fed. R. Evid. Serv. 779 UNITED STATES of America, Appellee, v. James David BLUE THUNDER, Appellant (two cases). 78-1734, 79-1060.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 550

604 F.2d 550

4 Fed. R. Evid. Serv. 779

UNITED STATES of America, Appellee, v. James David BLUE THUNDER, Appellant (two cases).

78-1734, 79-1060.

United States Court of Appeals Eighth Circuit.

Submitted June 12, 1979.

Decided Aug. 3, 1979.

Rehearing Denied Sept. 11, 1979.

Certiorari Denied Oct. 9, 1979.

See 100 S.Ct. 215.

Wayne F. Gilbert, Gunderson, Farrar, Aldrich, Ward & DeMersseman, Rapid City, S.D., for appellant; James David Blue Thunder, appellant, filed brief pro se.

Jeffrey L. Viken, Asst. U.S. Atty., Sioux Falls, S.D., for appellee; Robert D. Hiaring, U.S. Atty., and Gary G. Colbath, Asst. U.S. Atty., Sioux Falls, S.D., on the brief.

Before GIBSON, Chief Judge, and ROSS and HENLEY, Circuit Judges.

HENLEY, Circuit Judge.

James David Blue Thunder was convicted of first degree murder under provisions of 18 U.S.C. §§ 1111 and 1153 for stabbing to death with a butcher knife one Theresa Sands Blue Thunder who once had been his wife. He was sentenced by the district court ¹ to life imprisonment. His appeal from that conviction and sentence, No. 78-1734, was filed with this court in September of 1978. Subsequently we remanded the case for an evidentiary hearing on the question of effective assistance of trial counsel. On remand, the district court conducted a hearing and filed findings of fact, conclusions of law and an order stating its determination that Blue Thunder had been adequately represented at trial. He appeals that determination in No. 79-1060. The two appeals were consolidated for submission to this panel. We affirm.

For reversal, Blue Thunder contends that (1) the evidence was insufficient to support his conviction; (2) he was denied effective assistance of counsel at trial; (3) evidence of flight was improperly placed before the jury; and (4) the district court erred in denying certain of his post-trial motions.

Sufficiency of the Evidence.

Blue Thunder does not assert here that the government failed to prove beyond a reasonable doubt that he killed Theresa. The evidence clearly establishes that he stabbed his victim to death in her automobile on the tribal pow-wow grounds of the Rosebud Indian Reservation in South Dakota. The combined testimony of four government eyewitnesses disclosed that Blue Thunder forced his way into the victim's automobile, put a butcher knife to her throat, and eventually stabbed her in the back as she attempted to escape his grasp. One of the witnesses testified that he actually pulled Blue Thunder from the victim's body as it rolled from the vehicle. A second stated that Blue Thunder threw "an object" into a wooded area as he fled the scene. Investigating officers searched that area and recovered the murder weapon.

Blue Thunder does argue, however, that this and the remainder of the government's evidence is insufficient to support his conviction for first degree murder because it fails to establish that he committed the homicide with premeditation. Section 1111, under which he was convicted, retains the common law distinction between second degree murder, requiring only intent-to-kill with malice aforethought, and first degree murder which, in addition, requires intent-to-kill with premeditation and deliberation. ² See Beardslee v. United States, 387 F.2d 280 (8th Cir. 1967). Whether the defendant perpetrated the murder with premeditation is, of course, a jury question. 387 F.2d at 288-89; Weakley v. United States, 91 U.S.App.D.C. 8, 198 F.2d 940, 942 (D.C. Cir. 1952).

The relevant evidentiary factors to be considered in determining the existence of premeditation have been cogently summarized as follows:

On the basis of events before and at the time of the killing, the trier of fact will sometimes be entitled to infer that the defendant actually premeditated and deliberated his intentional killing. Three categories of evidence are important for this purpose: (1) facts about how and what the defendant did prior to the actual killing which show he was engaged in activity directed toward the killing, that is, Planning activity ; (2) facts about the defendant's prior relationship and conduct with the victim from which Motive may be inferred; and (3) facts about the Nature of the killing from which it may be inferred that the manner of killing was so particular and exacting that the defendant must have intentionally killed according to a preconceived design. (Emphasis in original.)

W. LaFave & A. Scott, Jr., Criminal Law § 73 at p. 564 (1972). See also People v. Anderson, 70 Cal.2d 15, 73 Cal.Rptr. 550, 447 P.2d 942 (1968); Annot., 96 A.L.R.2d 1435 (1964). We also note that in establishing premeditation the government was not required to show the defendant deliberated for any particular length of time before perpetrating the murder. Weakley v. United States, supra, 91 U.S.App.D.C. at 10, 198 F.2d at 942.

Although the government introduced all three types of premeditation evidence, it stressed the defendant's planning activities. It first called two witnesses who placed him in the vicinity of the victim's automobile thirty minutes prior to the stabbing. One of the witnesses, a tribal policeman, testified that at that time Blue Thunder appeared to be in a sober, rational frame of mind. The government then established that the victim's automobile had been in good running condition prior to its arrival at the pow-wow grounds but that sometime during the celebration it had been disabled through disconnection of a coil wire. The government took the position that the defendant had calmly and deliberately planned the murder, removing the coil wire and then timing his attack to coincide with the victim's attempt to start the vehicle.

The victim's sister testified that Blue Thunder had brought the murder weapon with him to the scene of the stabbing. This weapon, a butcher knife, had disappeared from the residence of Blue Thunder's aunt several days before the date of the murder. Even in the absence of proof of motive, the jury is generally allowed to infer premeditation from the fact that the defendant brought the deadly weapon to the scene of the murder. See, e. g., United States v. Brooks, 146 U.S.App.D.C. 1, 449 F.2d 1077 (D.C. Cir. 1971); United States v. Sutton, 138 U.S.App.D.C. 208, 426 F.2d 1202 (D.C. Cir. 1969); Belton v. United States, 127 U.S.App.D.C. 201, 382 F.2d 150 (D.C. Cir. 1967). Cf. Hemphill v. United States, 131 U.S.App.D.C. 46, 402 F.2d 187 (D.C. Cir. 1968) (no inference of premeditation where defendant may have obtained murder weapon at scene of crime); Austin v. United States, 127 U.S.App.D.C. 180, 382 F.2d 129 (D.C. Cir. 1967) (defendant's appearance with the murder weapon does not support an inference of premeditation if the nature of the weapon there a pocket knife is such that it would be regularly carried for another purpose).

With respect to proof of motive, the government introduced evidence of the defendant's dissatisfaction with his brief and unstable marriage with the victim.

Finally, government counsel argued that the nature and manner of the stabbing indicated Blue Thunder's premeditated intent to kill his victim. The knife had been thrust into the center of her back with force sufficient to pierce her heart. See People v. Hillery, 62 Cal.2d 692, 44 Cal.Rptr. 30, 401 P.2d 382 (1965) (plunging of knife into victim's chest is evidence of defendant's premeditated intent-to-kill).

In reviewing a conviction in a criminal case, we consider the evidence in the light most favorable to the government drawing all reasonable inferences in support of the jury verdict. United States v. Londe, 587 F.2d 18, 20 (8th Cir. 1978); United States v. Lanier, 578 F.2d 1246, 1249-50 (8th Cir.), Cert. denied, 439 U.S. 856, 99 S.Ct. 169, 58 L.Ed.2d 163 (1978). So considered we conclude without hesitation that the totality of the evidence clearly supports the jury's finding of premeditation and of guilt as charged.

Effective Assistance of Counsel.

Blue Thunder asserts that he was denied effective assistance of trial counsel because his court appointed attorney failed to (1) develop a possible insanity defense, (2) conduct a reasonable pretrial investigation of the murder charges, (3) confer with him prior to trial concerning the evidence against him and possible strategies to rebut that evidence, (4) counsel him on the potential ramifications of his decision not to testify in his own behalf, and (5) actively represent him at trial by impeaching certain witnesses, objecting to certain evidence, etc.

As noted, the district court conducted a plenary hearing on these charges and determined they were without merit. In reviewing that determination we are mindful of the presumption that the defendant received effective representation.

The standard for effective assistance of counsel 'is now established as that degree of performance which conforms to the care and skill of a reasonably competent lawyer rendering similar services under the existing circumstances.' Reynolds v. Mabry, 574 F.2d 978, 979 (8th Cir. 1978). The exercise of reasonable professional judgment, 'even when hindsight reveals a mistake in that judgment, does not render a lawyer . . . lacking in competence in rendering his services.' Id. There is a presumption that counsel has rendered effective assistance. Thomas v. Wyrick, 535 F.2d 407, 413 (8th Cir.), Cert. denied, 429 U.S. 868, 97 S.Ct. 178, 50 L.Ed.2d 148 (1976). To overcome the presumption, (the Defendant) 'must shoulder a heavy burden.' McQueen v. Swenson, 498 F.2d 207, 214 (8th Cir. 1974).

Catches v. United States, 582 F.2d 453, 456-57 (8th Cir. 1978). Also, the defendant must show that he was "materially prejudiced in the defense of his case by the actions or inactions of defense counsel." Morrow v. Parratt, 574 F.2d 411, 413 (8th Cir. 1978), and cases cited therein. We have carefully considered Blue Thunder's arguments and, on the record before us, cannot say that the district court was clearly erroneous in finding...