U.S. v. Clifford

• Decision Date: 06 February 1981
• Docket Number: No. 80-1547,80-1547
• Parties: 7 Fed. R. Evid. Serv. 854 UNITED STATES of America, Appellee, v. David Collins CLIFFORD, Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 150

640 F.2d 150

7 Fed. R. Evid. Serv. 854

UNITED STATES of America, Appellee, v. David Collins CLIFFORD, Appellant.

No. 80-1547.

United States Court of Appeals,

Eighth Circuit.

Submitted Oct. 17, 1980.

Decided Feb. 6, 1981.

James D. Leach, Rapid City, S. D., for appellant.

Terry L. Pechota, U.S. Atty. Jeffrey L. Viken, Asst. U. S. Atty., Sioux Falls, S. D., for appellee.

Before ROSS and HENLEY, Circuit Judges, and RENNER, ^* District Judge.

RENNER, District Judge.

David Collins Clifford appeals from his convictions for assault with a dangerous weapon, in violation of 18 U.S.C. §§ 113(c), 1153 (1976), and assault resulting in serious bodily injury, in violation of 18 U.S.C. §§ 113(f), 1153. Appellant asserts three errors as grounds for reversal: The trial court's refusal to admit proffered testimony of one Clifton Clifford; its failure to conduct adequate voir dire as to racial prejudice; and the failure to quash the venire. We affirm.

I.

The indictment was filed on December 12, 1979, charging Clifford with assault with a dangerous weapon with intent to do bodily harm by an Indian in Indian country (Count I), and with assault by an Indian in Indian country resulting in serious bodily injury (Count II). Jury trial commenced April 10, 1980, ultimately resulting in a verdict of guilty on both counts. ¹ On June 23, 1980, the district court sentenced defendant to forty months imprisonment on Count I and forty months imprisonment on Count II, the sentences to run concurrently to each other but consecutively to an unrelated county jail term defendant was then serving in Rushville, Nebraska. On June 23, 1980, Clifford filed his Notice of Appeal.

II.

This case arises out of an incident that occurred during the late evening hours of November 20, 1979. Clifford was attending a party on the Pine Ridge Indian Reservation in South Dakota. During the evening, Dale M. Brewer joined the party. Subsequently, appellant and Brewer engaged in "wrestling around" or "strongarming." Both men were armed, Clifford with a handgun and Brewer with a knife.

After Clifford and Brewer were first separated, Clifford struck Brewer on the side of the head with his gun. Brewer then approached Clifford and hit him several times. Clifford, in turn, pointed his gun at Brewer and fired, striking him in the left chest area.

III.

Appellant contends that the trial court erred in excluding from evidence the proffered testimony of his cousin, Clifton Clifford. This testimony was offered in support of the appellant's position that the shooting was in self-defense. In particular, it was offered to explain why he was carrying a gun on the day of the shooting.

In an offer of proof, Clifton Clifford stated that he would testify: that as a tribal attorney he frequently represents people in tribal court charged with crimes involving assaults at parties; that sometimes weapons are involved; that homes or property are damaged or destroyed by firearms or other weapons; that many homes on the reservation have gunshot holes in them; that "some nights it's like Vietnam where I live (in Pine Ridge)"; that people at parties shoot holes in the walls and others get shot accidentally; that his son-in-law was just shot and killed and the policeman who shot him then shot himself; that most people in Pine Ridge keep weapons in their homes; that many people in Pine Ridge also carry firearms on their persons; that he sometimes, during the week, hears gunfire; and that much of the violence in Pine Ridge is related to the American Indian Movement and the "goons." The trial court excluded the testimony of Clifton Clifford as irrelevant, tending to confuse the issues, and for lack of foundation as to the witness' knowledge of these matters.

Appellant was then allowed to testify about his reasons for carrying the gun. He testified that he carries one when he goes to Pine Ridge because there are "a lot of crazy people" in Pine Ridge and "(y)ou never know what is going to happen down there." Following this testimony, defense counsel moved to recall Clifton Clifford to testify to the matters contained in the offer of proof; the trial court denied the motion.

Appellant argues that the refusal to allow Clifton Clifford to testify violated his Sixth Amendment right to "obtain witnesses in his favor." United States Constitution Amendment VI; see Faretta v. California, 422 U.S. 806, 818, 95 S.Ct. 2525, 2532, 45 L.Ed.2d 562 (1975); Washington v. Texas, 388 U.S. 14, 23, 87 S.Ct. 1920, 1925, 18 L.Ed.2d 1019 (1967); United States v. Peltier, 585 F.2d 314, 332 (8th Cir. 1978), cert. denied, 440 U.S. 945, 99 S.Ct. 1422, 59 L.Ed.2d 634 (1979). A criminal defendant does not, however, have the right to have evidence admitted that is irrelevant or otherwise inadmissible. Chambers v. Mississippi, 410 U.S. 284, 302, 93 S.Ct. 1038, 1049, 35 L.Ed.2d 297 (1973); United States v. Peltier, supra, 585 F.2d at 331-32. Determinations of relevancy and admissibility are within the broad discretion of the trial court. United States v. Holmes, 594 F.2d 1167, 1172 (8th Cir.), cert. denied, 444 U.S. 873, 100 S.Ct. 154, 62 L.Ed.2d 100 (1979); United States v. Kills Crow, 527 F.2d 158, 160 (8th Cir. 1975).

The facts that appellant had a gun and that he shot Brewer are uncontroverted. His reason for carrying the gun does not pertain to "the existence of any fact that is of consequence to the determination of the action ...." Fed.R.Evid. 401. The mere possession of a gun simply does not go to the issue of whether its use is justified in self-defense. Appellant was given ample opportunity to explain his state of mind at the time of the shooting. The trial court concluded correctly that to admit into evidence testimony as to the climate of violence on the Pine Ridge Indian Reservation would only confuse the jury on the issue of defendant's state of mind.

The trial court's determination is supported by case law. In United States v. Kills Crow, supra, 527 F.2d at 160, we held that the district court did not abuse its discretion in excluding expert testimony on an alleged justification for a defendant's act not shown to be relevant to the defendant's mind at the time of the offense. The case of United States v. Staggs, 553 F.2d 1073 (7th Cir. 1977), relied on by defendant, provides similar support. In Staggs the Seventh Circuit held that the trial court erred in excluding as irrelevant crucial character evidence, admissible under Fed.R.Evid. 401, because it related directly to the defendant's subjective intention. Id. at 1075-76. The proffered testimony here, in marked contrast, was general in nature and only remotely related to the issue to be decided: whether Clifford acted in self-defense when he shot Brewer.

IV.

Appellant also contends the trial court erred in failing to conduct adequate voir dire on racial prejudice. Prior to trial, Clifford proposed extensive voir dire questions relating to racial prejudice. The court refused to submit the specific requested questions, but conducted its own inquiry into the possibility of racial prejudice. ² Appellant challenges the court's failure to question more particularly as to individual racial bias. United States v. Bowles, 574 F.2d 970, 973 n.3 (8th Cir. 1978). He asserts it was not a thorough examination as to prejudice against American Indians. United States v. Long Elk, 565 F.2d 1032, 1041 (8th Cir. 1977).

The trial court has broad discretion in deciding what questions to ask in jury voir dire. Pope v. United States, 372 F.2d 710, 725-27 (8th Cir. 1967). There is no constitutional requirement for voir dire on racial matters unless the circumstances suggest a significant likelihood that racial prejudice might infect trial. Ristaino v. Ross, 424 U.S. 589, 598, 96 S.Ct. 1017, 1022, 47 L.Ed.2d 258 (1976). The trial court is required, however, to pose appropriate questions as to possible racial bias of prospective jurors when a defendant is a member of a racial minority. Id. at 597 n.9, 96 S.Ct. at 1022 n.9; United States v. Bowles, supra, 574 F.2d at 973 n.3; United States v. Bell, 573 F.2d 1040, 1043 (8th Cir. 1978). The sufficiency of the trial court's questions in eliciting appropriate and true responses are to be evaluated in the light of all the attendant circumstances. United States v. Bear Runner, 502 F.2d 908, 912 (8th Cir. 1974).

Clifford cites Bear Runner as support. This case, however is closer to Bell than Bear Runner. In Bear Runner the court took notice of certain publicized events involving American Indians that had occurred in western and central South Dakota within the year immediately preceding the trial. Against this factual background it was held that a single, general voir dire question directed to the panel as a whole was insufficient. United States v. Bear Runner, supra, 502 F.2d at 912.

In Bell the defendant, a black man, was tried before an all white jury. The trial court asked the prospective jurors three questions regarding possible racial bias, rejecting nineteen additional questions requested by the defendant, all but one of which concerned race. We held the trial court's refusal to ask the requested voir dire questions was a proper exercise of discretion. United States v. Bell, supra, 573 F.2d at 1043.

The passage of nearly six years since the time of Bear Runner has logically diminished the impact of the earlier publicized accounts. While we must be ever vigilant in our scrutiny as to potential prejudice, it need not always take the same form. Moreover, the issue of race is not inextricably involved in this case. Under these circumstances, we conclude the questions asked by the trial court adequately and properly examined, and would have revealed, any racial prejudice on the part of the potential jurors.

Our conclusion is supported by the trial court's invitation to the individual panel members to approach the bench and privately inform the court of any matter tending to have a bearing on their ability to render...