U.S. v. Bolzer, 03-1845.

• Decision Date: 20 May 2004
• Docket Number: No. 03-1845.,03-1845.
• Citation: 367 F.3d 1032
• Court: U.S. Court of Appeals — Eighth Circuit
• Parties: UNITED STATES of America, Plaintiff — Appellee, v. Toby BOLZER, Defendant — Appellant.

367 F.3d 1032

UNITED STATES of America, Plaintiff — Appellee, v. Toby BOLZER, Defendant — Appellant.

No. 03-1845.

United States Court of Appeals, Eighth Circuit.

Submitted: December 16, 2003.

Filed: May 20, 2004.

Rehearing and Rehearing En Banc Denied June 25, 2004.

Monica D. Thomas, argued, Rapid City, SD, for appellant.

Mara M. Kohn, AUSA, argued, Rapid City, SD, for appellee.

Before WOLLMAN, JOHN R. GIBSON, and RILEY, Circuit Judges.

GIBSON, Circuit Judge.

Toby Bolzer was convicted of second-degree murder and use of a firearm during the commission of a crime of violence in violation of 18 U.S.C. §§ 1111, 1153 and 924(c). He was sentenced to 168 months imprisonment on the murder count, 120 months consecutively on the firearm count, three years supervised release, restitution of $4,326.44 and special assessments of $200. He argues on appeal that the district court erred in: 1) denying his motion for acquittal based on the alleged failure of the government to meet its burden with respect to all elements of second-degree murder; 2) giving an erroneous jury instruction on malice aforethought; 3) failing to grant a mistrial based on prosecutorial misconduct; 4) refusing to allow extrinsic proof of a prior inconsistent statement by a government witness; and 5) giving an erroneous jury instruction regarding his allegedly false exculpatory statements. We affirm.

I.

At the time of her death, Santana Standing Bear lived in a house on the Pine Ridge Indian Reservation with Holly Quinn, Quinn's four year-old daughter, Tyra, and the defendant, Toby Bolzer. Quinn and Santana, both female, were in a romantic relationship and had begun living together sometime in 2000. Bolzer moved in during the fall of 2001. He knew Quinn from when they worked together for the Oglala Sioux Tribal Police and had romantic feelings toward her. Quinn told Bolzer that she was not interested in a romantic relationship with him, but nonetheless allowed him to live in her home because Bolzer was unemployed and had previously helped her.

The government presented evidence that the relationship between Santana and Bolzer was friendly at first but quickly deteriorated. Quinn testified that Bolzer and Santana were jealous people and that problems developed between the two once Bolzer learned the romantic nature of Santana's relationship with Quinn. She said Bolzer and Santana rarely spoke to each other and often complained about one another to Quinn. On February 16, 2002, Quinn told Bolzer that "if he couldn't handle the situation with [Quinn and Santana] being together, then he could leave." According to Quinn, Bolzer responded by yelling, "I hate her, I hate her." Neither he nor Santana left the household.

Several witnesses provided testimony about Santana's mental and emotional problems. There was testimony that Santana had been the victim of an attempted rape, had been emotionally and physically abused by her mother, had suffered sexual abuse by her relatives, and had threatened or attempted to harm herself or commit suicide on several occasions. She spent a significant amount of time in treatment centers attempting to deal with these problems.

Santana's death occurred on the night of February 20, 2002. With the exception of the few moments immediately preceding her death, the events of that night are undisputed. The four members of the household spent the early evening hours watching a movie with Quinn's eight year-old niece, Clara Poor Bear. When the movie ended, Bolzer offered to drive Clara home. Santana and Quinn began to argue while he was gone, and Quinn called Santana a "psycho." This comment caused Santana to become very upset. She took Quinn's gun, which Quinn possessed in connection with her employment by the Oglala Sioux Tribal Police, and refused to relinquish it. Quinn continued arguing with Santana and told her at one point, "This is it. This is fucking it," which Quinn later explained meant that she considered their relationship to be over. Santana eventually moved from the kitchen, where the argument had started, to her bedroom. She kept the gun with her.

Bolzer returned when the two women were still in the kitchen arguing and entered the house as Santana was walking toward her bedroom. Bolzer took Tyra into the kitchen and attempted to comfort her while Quinn followed Santana to her bedroom. Quinn heard Santana on the phone with a friend and took a step into the bedroom. Santana pointed the weapon at Quinn and told her, "Don't come any closer." Quinn backed out of the room and watched as Santana turned the gun and pointed it at her own chest. Quinn returned to the kitchen for ten seconds, then walked back to Santana's bedroom. Santana was still holding the weapon to her chest and was trying to call her mother.

Quinn returned to the kitchen again. She helped Bolzer get Tyra ready so that Bolzer could take Tyra out of the house. After Bolzer and Tyra left the house, Quinn put on her bullet-proof police vest and returned a third time to Santana's bedroom. She heard Santana on the phone to Carla Jean Standing Bear ("C.J."), saying, "C.J., I don't know what to do. I am going to kill myself." Quinn panicked, left the police vest in her bedroom, and ran out of the house to Bolzer's truck, where Bolzer and Tyra were sitting. Quinn told Bolzer, "She's going to do it, she's going to do it." She then asked Bolzer, "Shall I go in, or are you going to go in?" He responded, "I will."

As Bolzer proceeded toward the house, Quinn told him her vest was in her bedroom and that he should also use her mace. After Bolzer entered the house, Quinn sat in the pickup for one or two minutes and then drove off with Tyra to her cousin's home. Quinn hoped to bring her cousin back to Quinn's house because she thought her cousin could calm Santana down.

The events of the next few moments are disputed. Bolzer testified that he entered the house, found Quinn's mace, and put on Quinn's police vest. He said that Santana's door was locked when he reached it but that he could hear her crying and talking on the phone. He sprayed mace under the door, then went to the kitchen to find a knife that he could use to pry the door open. He found a knife, opened the door, took a step into the room and told her, "Give me the gun; give me the gun." He testified that he approached her and sprayed mace at her, and she turned away. He testified that he took another step and reached down for the gun when a shot was fired-either accidentally or because Santana intentionally pulled the trigger-into Santana's chest.

The government presented evidence that the shooting was neither accidental nor a suicide. The government's primary evidence was Bolzer's own confession, which he made to FBI agents on March 7, 2002, approximately two weeks after Santana's death. FBI Special Agent Joe Weir testified that he and two other agents had Bolzer reenact the events surrounding Santana's death, and that the reenactment led to Bolzer admitting to "grabbing the gun, pulling it back, raising it up, and then pulling the trigger one round" into Santana's chest. Weir testified that Bolzer admitted he shot Santana because the events of the night presented an opportunity to "get her out of the way." Weir also testified that Bolzer acknowledged having lied to law enforcement by portraying the incident as a suicide.

The government also relied on testimony from Carla Standing Bear, who said that she was on the telephone with Santana when Bolzer entered the bedroom on the night of the shooting. Carla Standing Bear testified that she heard Bolzer say, "Santana, you bitch." She testified that Santana told her Toby had a gun and that she needed help.

II.

Bolzer challenges the sufficiency of the evidence supporting his conviction for second-degree murder. He argues that even if the jury concluded he shot Santana, the evidence surrounding the shooting-particularly the evidence of Santana's emotional instability-is uncontradicted and shows the existence of extenuating circumstances. These extenuating circumstances, he argues, negate any finding of malice aforethought, which is a necessary element of second-degree murder. Instead, he asserts that the facts support only a finding of voluntary manslaughter. The district court denied his motion for judgment of acquittal both at the end of the government's case and at the close of the trial.

"We review the denial of a motion for acquittal by viewing the evidence in the light most favorable to the verdict, giving the government the benefit of all reasonable inferences to be drawn from the evidence." United States v. Davis, 103 F.3d 660, 667 (8th Cir.1996).¹ We will uphold the conviction against a challenge to the sufficiency of the evidence unless "a reasonable fact-finder must have entertained a reasonable doubt about the government's proof of one of the offense's essential elements." United States v. Teitloff, 55 F.3d 391, 393 (8th Cir.1995).

Bolzer rests his argument on DeMarrias v. United States, 453 F.2d 211 (8th Cir.1972), in which the appellant appealed his conviction for second-degree murder on the ground that there was insufficient evidence of malice aforethought. The appellant in DeMarrias had admitted in conversations with third-parties to having killed the victim but made no further comment about his subjective motivation at the time of the homicide. Id. at 214. The three statements he made were: 1) "Keep still or I will hit you, too" (made to another occupant of the home where the incident occurred); 2) "I hope Jerry isn't dead. If he is, I have to go back to Sandstone, Minnesota, prison"; and 3) "I killed my brother. I killed my brother." Id. The government argued that evidence of collateral circumstances tended to prove malice, including evidence that the victim had been found lying in a bed and that the appellant had assaulted two other persons during the night of the homicide and had threatened a third. We held that neither the...