U.S. v. Chapman, 78-2015

• Decision Date: 15 February 1980
• Docket Number: No. 78-2015,78-2015
• Citation: 615 F.2d 1294
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Kenneth R. CHAPMAN, Defendant-Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 1294

615 F.2d 1294

UNITED STATES of America, Plaintiff-Appellee, v. Kenneth R. CHAPMAN, Defendant-Appellant.

No. 78-2015.

United States Court of Appeals, Tenth Circuit.

Argued Nov. 27, 1979.

Decided Feb. 15, 1980.

Richard J. Smith, Asst. U. S. Atty., Albuquerque, N.M. (R. E. Thompson, U. S. Atty. and Robert Bruce Collins, Asst. U. S. Atty., Albuquerque, N.M., on the brief), for plaintiff-appellee.

R. Raymond Twohig, Jr., Asst. Public Defender, Albuquerque, N.M. (William W. Deaton, Federal Public Defender, Albuquerque, N.M., on the brief), for defendant-appellant.

Before SETH, Chief Judge, HOLLOWAY and BARRETT, Circuit Judges.

BARRETT, Circuit Judge.

Kenneth Chapman (Chapman) appeals his jury conviction of murder with premeditation. Chapman, an Indian, was charged in a one count indictment with unlawfully killing one Larry Paquin (Paquin), an Indian, with malice aforethought, premeditation and deliberation, on the Zuni Indian Reservation, in violation of 18 U.S.C.A. §§ 1153 and 1111. The events preceding the killing are generally not in dispute.

During mid June 1978, Paquin and one Brian Lasiloo were given a ride to a bar by Chapman. After the bar closed the three went to Chapman's trailer, arriving there at approximately 3:00 A.M. At or about sunrise, Paquin obtained the keys to Chapman's pickup, drove Lasiloo to his home and then drove the pickup to Arizona. When Chapman awakened later the same morning and discovered that his pickup was gone, he went to Lasiloo's house seeking his vehicle. Chapman approached Lasiloo with a shotgun, and he became furious when he couldn't find the pickup. Chapman then proceeded to beat Lasiloo with the butt of the gun. Prior to leaving Lasiloo's house, Chapman threatened to kill both Lasiloo and Paquin.

Chapman later reported to the police and others that Paquin had stolen his pickup and that when he found him (Paquin), he was going to "shoot" or "kill" him. Chapman also stated that Paquin had stolen some money from him at the time he took the pickup.

Approximately five weeks later on July 29, 1978, Chapman, who had been drinking, took his pickup ¹ and shotgun and went seeking out Paquin in an attempt to "scare him into giving me my money back". Chapman located Paquin about 4:00 P.M. at a friend's house. Witnesses there observed Paquin approach Chapman's truck and talk to him briefly. Moments later, Chapman according to a number of witnesses, "pulled out the gun and fired it", killing Paquin almost instantly. When one of the observers rushed to Paquin's aid, Chapman stated "Come on. You want to be next" and "Remember, forget me or you will be next".

At the time of the shooting, Benito Anastacio was a passenger in Chapman's pickup. Anastacio testified that prior to Chapman's encounter with Paquin he attempted to get out of the truck; that Chapman would not let him; that Chapman stated "You say nothing" and "If I get out of there, I'm going to come and get you". Anastacio also stated that immediately prior to hearing the shotgun blast Chapman told Paquin "I'm going to shoot you" to which Paquin responded, "Go ahead".

Chapman testified that the shooting was an accident. In discussing the shooting, Chapman related:

Q (Mr. Deaton, defense attorney) Were you in your pickup?

A (Kenneth Rudolph Chapman) Yes.

Q Did you have some kind of a gun in that pickup?

A Yes.

Q What did you have?

A A gun, you say?

Q Yes.

A Yes, sir.

Q What kind of a gun?

A It was a sawed off shotgun.

Q What gauge was it?

A Sixteen.

Q And where was it?

A It was under the seat.

Q What happened when you got to the Eriacho's house?

A When I got to the Eriacho house?

Q Yes.

A I called Larry Paquin over to the pickup.

Q How did you do that?

A I went this way to him (indicating).

THE COURT: Indicating with his hand. Go ahead.

Q (By Mr. Deaton) And when you did that, did he respond?

A Yes.

Q What did he do?

A He came to the pickup.

Q Now, where was this shotgun at this time?

A It was on my lap.

Q All right, sir, what happened after Larry Paquin came to the pickup?

A Well, he come over there and I asked him if he would return the money that he had taken.

Q What happened then?

A Then he put his hand on the pickup.

Q Yes, sir.

A (Continuing) Well, that is on the mirror, on the side.

Q All right.

A (Continuing) And when I asked him for the money, he said, "I don't owe you a damn thing".

Q What did you say to him?

A Well, I didn't say nothing, he said, "If you're going to use that thing, you can go ahead and use it."

Q And what was he talking about, Mr. Chapman?

A What?

Q What was he talking about?

A The money that he had stolen.

Q When he said, "if you're going to use that thing, go ahead and use it".

A Yes.

Q Was he talking about the gun?

A Yes.

Q Where was it?

A Laying on the window.

Q The truck window?

A Yes, I had my hand over the steering wheel, and it was laying across, this way.

Q Did you have your right hand on it?

A I had it over the top of it (indicating).

Q How were you holding it?

A Well, like it was like this, I had my hand over the top this way (indicating).

Q All right, then what happened?

A Where the hammer was at.

Q Yes, sir, and then what happened?

A Then what he planned on doing was grabbing it, and I pulled it away from him and he pulled it and when he grabbed it and pulled it, he pulled it clear across my hand and the hammer went back and fired.

(R., Vol. III, pp. 223-225).

Chapman testified that after the shooting he panicked, went into shock, and proceeded to his brother's house where he made numerous efforts to call the police, after relating to his sister-in-law that he had accidentally shot a man. In discussing the events immediately prior to the shooting, Chapman stated on cross-examination:

A I would say that I was feeling pretty happy, I was going to the picnic, and I decided to stop there and scare him into giving me my money back.

(R., Vol. III, pp. 242-243).

Chapman also stated that upon seeing Paquin at his friend's house, "I wasn't going to stop until he gave me a finger." (R., Vol. III, p. 242).

Throughout the trial, Chapman repeatedly and consistently denied that he ever told anyone he was going to shoot or kill Paquin.

At the conclusion of all the evidence the jury was instructed on the elements of first and second degree murder. The court declined to give Chapman's proffered instruction on voluntary manslaughter. Following the verdict of guilty, Chapman was sentenced to fifty (50) years imprisonment.

On appeal Chapman contends: (1) the court erred in refusing to give a voluntary manslaughter instruction inasmuch as there was evidence to support such a theory of defense; and (2) repeated comments by the prosecutor gave rise to misconduct and reversible error.

I.

Chapman contends that the court erred in refusing to give his proffered instruction on voluntary manslaughter. In reviewing the submission of instructions, the following colloquy transpired:

MR. DEATON: May it please the Court, with respect to the Defendant, we would object to the refusal of the Court to give the crime of manslaughter as a lesser included offense and to define the crime of manslaughter, specifically voluntary manslaughter, and manslaughter as was submitted in Defendant's instructions.

(Pursuant to certificate of designation of record on appeal, Defendant proposed instruction on manslaughter furnished to reporter is herewith set forth.)

"Defendant's requested instruction.

"Section 1112 of Title 18 of U.S.C.A. defines manslaughter as follows:

"Manslaughter is the unlawful killing of a human being without malice. It is of two kinds:

"Voluntary upon a sudden quarrel or heat of passion.

"The heat of passion, which will reduce a murder to manslaughter, must be such passion as would be aroused naturally in the mind of the ordinary reasonable person under the same or similar circumstances, as shown by the evidence in the case.

"Neither the passion of fear, in and of itself, nor the passion for revenge, in and of itself, nor the passion induced and accompanying or following an intent to commit a felony, in and of itself, nor any combination of any one or more or all of these passions, in and of themselves, constitutes the heat of passion which will reduce a murder to manslaughter. It is true that the emotions just mentioned may be involved in a heat of passion such as substitutes impulse and rashness for judgment; but it is also true that such emotions may exist in the mind of a person who acts deliberately, and from choice, following his own reasoning, however good or bad that reasoning may be.

"The Court does not permit a person to set up his own standard of conduct, or to justify or excuse himself, merely because his passions were aroused, unless the circumstances in which he was confronted, were such as would have aroused the passion of the ordinary reasonable person, similarly situated. So, the test to be applied, in determining whether a killing was in the heat of passion which will reduce a murder to manslaughter, is whether or not, at the time of the killing, the reason of the accused was obscured or disburbed (sic) by passion to such an extent as would cause the ordinary reasonable person to act rationally and without deliberation, and reflection, and from such passion, rather than from judgment.

Devitt and Blackmar, 41.14"

THE COURT: Mr. Deaton, I did not instruct the jury on voluntary manslaughter, because I did not feel that the evidence in this case justified the giving of that instruction. My impression is that as a matter of law, the evidence is sufficient to submit the question of provocation, special provocation to the jury, that is the reason that I didn't so instruct. Any other objection?

(R., Vol. III, pp. 288-290).

Chapman argues that had the requested manslaughter instruction been given, "defense counsel would have been able to argue" from the evidence that the combination of Paquin's "throwing a finger" to...