U.S. v. Crowe

• Decision Date: 24 April 2009
• Docket Number: No. 08-30173.,08-30173.
• Citation: 563 F.3d 969
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Stanette Patricia CROWE, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

563 F.3d 969

UNITED STATES of America, Plaintiff-Appellee, v. Stanette Patricia CROWE, Defendant-Appellant.

No. 08-30173.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted February 3, 2009.

Filed April 24, 2009.

Anthony R. Gallagher, Federal Defender, Great Falls, MT, for the defendant-appellant.

William W. Mercer, United States Attorney, and Eric B. Wolff, Assistant United States Attorney, Billings, MT, for the plaintiff-appellee.

Appeal from the United States District Court for the District of Montana, Sam E. Haddon, District Judge, Presiding. D.C. No. CR 07-123-GF-SEH.

Before: RICHARD A. PAEZ and JOHNNIE B. RAWLINSON, Circuit Judges, and BRUCE S. JENKINS,^* District Judge.

JENKINS, Senior District Judge:

Appellant Stanette Patricia Crowe challenges her conviction and sentence for involuntary manslaughter under 18 U.S.C. §§ 1112(a) and 1153, arguing that the district court erred in admitting "other acts" evidence under Fed.R.Evid. 404(b); that it improperly instructed the jury on involuntary manslaughter as a lesser included offense; that the evidence adduced at trial was legally insufficient to establish her guilt of involuntary manslaughter beyond a reasonable doubt; and that her sentence of thirty-two months of imprisonment for that offense was unreasonable under the totality of the circumstances. We have jurisdiction of her appeal pursuant to 28 U.S.C. § 1291, and we affirm.

I. BACKGROUND

In December of 2006, Crowe was residing in Brockton, Montana¹ with Donald Eagleman, their eighteen-month-old son, and Crowe's father, Stanley. At that time, Crowe was nearly eight months pregnant. On December 31, 2006, Crowe and Eagleman went to a bar in Brockton to celebrate New Year's Eve, returning home shortly after midnight.

While at the bar, Eagleman became intoxicated, but did not want to leave the bar and was angry that they had returned home. Crowe asked Eagleman to stay home and tried to keep him from leaving, but Eagleman pushed her down and began hitting her.² The altercation between Crowe and Eagleman continued in the kitchen. Eagleman pushed Crowe against the kitchen counter, hitting her with his fist, grabbing her by the neck and repeatedly pulling her back and forth. Crowe then reached behind her back, grabbed a knife, and swung it at Eagleman, striking him once.³ Eagleman then backed away from Crowe, said "I'm out of here," picked up his coat, and left the residence. Crowe then went to the bedroom and told her father, "I think I stabbed Donald."

A few minutes later, Eagleman returned to the residence and knocked on the front door. Crowe opened the door and Eagleman collapsed onto the floor. Having no telephone, Crowe then left her residence to get help. She located her uncle at her grandmother's house and then returned to her residence, where she found Eagleman still lying on the floor, complaining that it was hard for him to breathe. Eagleman asked Crowe to put pressure on his chest, which she did. Her uncle arrived, observed Eagleman lying on the floor, and then left to find the local police, who arrived at the residence a few minutes later. Eagleman was then transported by ambulance to the hospital, where he was later pronounced dead.

Following an investigation, Crowe was indicted by the grand jury on one count of voluntary manslaughter under 18 U.S.C. §§ 1112(a) and 1153. Crowe entered a "not guilty" plea and the matter proceeded to a jury trial on January 29, 2008.⁴

The jury heard testimony from the Government's witnesses concerning the events of New Year's Eve, as well as a prior incident in February of 2006 in which Crowe struck Eagleman in the head with a liquor bottle, cutting his ear. At the close of the Government's evidence, Crowe's counsel moved for a judgment of acquittal, which was denied. The jury then heard testimony from the defense witnesses, including Crowe herself, and from two rebuttal witnesses. The witnesses recounted the events of New Year's Eve, as well as prior incidents in which Eagleman had acted violently toward Crowe. Crowe's counsel renewed the motion for judgment of acquittal, which was denied. After closing arguments and jury instructions, the matter was submitted to the jury. On the evening of January 30, the jury returned a verdict acquitting Crowe on the charge of voluntary manslaughter, but finding her guilty of the lesser included offense of involuntary manslaughter.

Crowe's counsel filed a written motion for judgment of acquittal, which was heard and denied. The presentence investigation report computed an advisory Guidelines sentencing range of 27-33 months, based upon an adjusted offense level of 18 and a criminal history category of I. At her May 12, 2008 sentencing hearing, Crowe did not dispute those calculations, but requested a downward departure pursuant to U.S.S.G. § 5K2.10. The district court denied that request and imposed a sentence of thirty-two months' imprisonment, to be followed by a term of three years' supervised release.

II. DISCUSSION

A. Lesser Included Offense Instruction

In this appeal, we first consider whether in a prosecution for voluntary manslaughter, the district court correctly instructed the jury sua sponte concerning involuntary manslaughter as a lesser included offense after the defendant had asserted a claim of self-defense to the voluntary manslaughter charge.

A trial court may instruct the jury as to a lesser included offense if (1) "the offense on which instruction is sought is a lesser-included offense of that charged" and (2) the "jury rationally could conclude that the defendant was guilty of the lesser-included offense but not of the greater." United States v. Torres-Flores, 502 F.3d 885, 887 (9th Cir.2007) (quoting United States v. Pedroni, 958 F.2d 262, 267-68(9th Cir.1992)); see Fed.R.Crim.P. 31(c)(1). Generally, "[w]e review the first step de novo and the second step for abuse of discretion." United States v. Arnt, 474 F.3d 1159, 1163(9th Cir.2007) (citing United States v. Naghani, 361 F.3d 1255, 1262 (9th Cir.2004)); see also United States v. Anderson, 201 F.3d 1145, 1148 (9th Cir. 2000) (determination "whether a jury could have found that the defendant was guilty of the lesser included offense but not of the greater" is reviewed for abuse of discretion). Where, as here, the defendant failed to timely object to jury instructions,⁵ "we review under our familiar plain error standard."⁶ United States v. Santiago, 466 F.3d 801, 803 (9th Cir.2006); see also Herzog v. United States, 235 F.2d 664, 666-67 (9th Cir.1956) (en banc) (in the absence of timely objection under Fed. R.Crim.P. 30, jury instructions are reviewed for plain error under Fed. R.Crim.P. 52).

Manslaughter is "the unlawful killing of a human being without malice." 18 U.S.C. § 1112(a). Voluntary manslaughter occurs upon "a sudden quarrel or heat of passion"; involuntary manslaughter, on the other hand, involves "the commission of an unlawful act not amounting to a felony, or ... the commission in an unlawful manner, or without due caution and circumspection, of a lawful act which might produce death." Id. Involuntary manslaughter requires proof:

(1) that the defendant acted with "gross negligence," defined as "wanton or reckless disregard for human life;" and (2) that the defendant had actual knowledge that his conduct was a threat to the lives of others, ... or had knowledge of such circumstances as could reasonably be said to have made foreseeable to him the peril to which his acts might subject others.

United States v. Keith, 605 F.2d 462, 463 (9th Cir.1979) (quoting United States v. Escamilla, 467 F.2d 341, 347(4th Cir. 1972)); see also United States v. Main, 113 F.3d 1046, 1050 (9th Cir.1997) (explaining that "the essential elements of a crime covered by § 1112 are not all expressed in the statute but are, instead, implicit in the common understanding of the crime."); Manual of Model Criminal Jury Instructions for the District Courts of the Ninth Circuit § 8.92 (2003). "Thus, involuntary manslaughter is an unintentional killing that `evinces a wanton or reckless disregard for human life but not of the extreme nature that will support a finding of malice.'" United States v. Paul, 37 F.3d 496, 499 (9th Cir.1994) (quoting United States v. Lesina, 833 F.2d 156, 159(9th Cir.1987)).

Involuntary manslaughter is a lesser included offense of murder and voluntary manslaughter. See Arnt, 474 F.3d at 1163; United States v. Skinner, 667 F.2d 1306, 1309 n. 1(9th Cir.1982) (per curiam). Indeed, we have observed that in a homicide case, "if any construction of the evidence and testimony would rationally support a jury's conclusion that the killing was unintentional or accidental, an involuntary manslaughter instruction must be given." Anderson, 201 F.3d at 1150.

Crowe nonetheless insists that her claim of self-defense negated any theory that Eagleman's death was accidental or that his stabbing was an unintentional act because she intentionally delivered the stab wound that ultimately caused his death. She asserts that she was legally entitled to do so as a means of self-defense, and argues that in her case, involuntary manslaughter and self-defense are mutually exclusive. But Crowe's argument falls short of asserting that she intended to use deadly force in striking Eagleman with the knife, i.e., that she intended to kill him, and the district court concluded from the evidence presented at trial that a rational jury could find that Crowe intentionally struck Eagleman with the knife, acting in self-defense, but without intending to kill him.⁷

Crowe acknowledges that "[a] self-defense theory advanced by the defense can be consistent with a conviction for involuntary manslaughter under some circumstances." United States v. Manuel, 706 F.2d 908, 915 (9th Cir.1983).

The example most easily conceived is where the defendant is assaulted but does not have a reasonable apprehension of suffering great bodily harm or death, and is...