U.S. v. Felix

• Citation: 996 F.2d 203
• Decision Date: 18 June 1993
• Docket Number: No. 92-3469,92-3469
• Parties: UNITED STATES of America, Appellee, v. Helen FELIX, Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (8th Circuit)

Page 203

996 F.2d 203

UNITED STATES of America, Appellee, v. Helen FELIX, Appellant.

No. 92-3469.

United States Court of Appeals,

Eighth Circuit.

Submitted Feb. 17, 1993.

Decided June 18, 1993.

Robert B. Anderson, Pierre, SD, argued, for appellant.

Mikal Hansen, Asst. U.S. Atty., Pierre, SD, argued, for appellee.

Before BOWMAN, WOLLMAN, and HANSEN, Circuit Judges.

WOLLMAN, Circuit Judge.

Helen Felix and Valerie Heron were indicted and tried before a jury for their respective roles in the mob beating of Robert Black Feather. The jury acquitted Heron and found Felix guilty of assault resulting in serious bodily injury, in violation of 18 U.S.C. §§ 1153 and 113(f). Felix appeals from her conviction on the grounds that the district court ¹ erred in refusing to give a lesser included offense instruction and in not declaring a mistrial. We affirm.

I.

On August 29, 1991, a group of about twenty-five people were having a party at Felix's residence at the Winner, South Dakota, Indian Housing area. The members of the group continued to drink, sing, and play loud music into the early morning hours. At approximately 4:00 a.m., Robert and Bonnie Black Feather, who lived across the street from the Felix residence, called the Winner Police Department to have the party quieted down. The Black Feathers were informed that the Bureau of Indian Affairs officer responsible for patrolling the Indian Housing area was off duty and that the Winner Police Department did not respond to routine calls from the Indian Housing area because it has no jurisdiction there.

At about 5:00 a.m., the Black Feathers walked over to the Felix residence. Robert, carrying a baseball bat for personal protection, asked Felix to turn down the music, which was blaring from two stereo speakers located in the open basement windows of the Felix home. Felix declined, and ordered Robert to get out of her yard, whereupon the two became engaged in an argument. Robert was pelted with full beer cans thrown by some of the partygoers. Felix herself threw one beer can and had another in hand. Bonnie Black Feather, believing that Felix was about to throw the can at Robert, grabbed Felix, and Felix fell to the ground. At about the time that Felix and Bonnie were struggling, Robert silenced the loud music by kicking over the stereo speakers (as he testified) or by striking them with the baseball bat (as other witnesses testified).

As Robert was leaving the Felix yard to return to his house, Felix's son Pete struck him from behind on the left temple with a metal bar. Several individuals then attacked Robert and knocked him down. A group of people surrounded Robert and beat and kicked him for five to fifteen minutes while he lay helpless on the ground. Some members of the mob struck him with clubs, some hit him with their bare hands, and some kicked him. The beating stopped only when Bonnie Black Feather returned from the Black Feather residence with a revolver and fired two warning shots. The attackers then quickly scattered.

As a result of the attack, Robert Black Feather's skull, jaw, and left leg were fractured. The mid-portion of his face was crushed, including his nose, his right cheekbone, and both eye sockets. He suffered multiple contusions on his shoulders, rib cage, back, and left leg. He suffered a total loss of vision for ten days following the attack and has experienced a fifteen percent permanent loss of vision in his left eye.

Numerous witnesses testified that Felix was involved in the beating. Some witnesses testified that after Felix's argument with Robert and her physical struggle with Bonnie, she yelled "Get him!" Eight witnesses testified that they had seen Felix in the group surrounding Robert as he was being beaten: some testified that they had seen Felix beating him with a club; some stated that they had seen her punching him with her hands; and others testified that they had seen her standing beside Robert but had not seen her strike him. Additionally, some witnesses testified that Felix had yelled such comments as, "Get him," "Hit him again," and "Kill him," as Robert was being pummelled.

Felix denied any involvement in the assault. She admitted that she had yelled and screamed upon being knocked down, but could not remember what she had said. She claimed that her glasses had been knocked off during her confrontation with Bonnie and that she had spent several minutes looking for them. Although she admitted that the attack took place only a few feet from where she was looking for her glasses, she testified that she had not seen the attack and did not know that it had occurred until it was over.

The district court instructed the jury on the two offenses charged in the indictment: assault with a deadly weapon with the intent to do bodily harm, in violation of 18 U.S.C. § 113(c), and assault resulting in serious bodily injury, in violation of 18 U.S.C. § 113(f). The court further instructed the jury that it could find a defendant guilty of a charged offense even if she had not personally done all the acts constituting the offense, if she had aided and abetted the commission of the offense. Although Felix proposed a jury instruction on the lesser included offense of assault by striking, beating, or wounding, in violation of 18 U.S.C. § 113(d), the court refused to give it, stating that the evidence did not support the proposed instruction.

The district court submitted the case to the jury at 12:55 p.m. on Thursday, August 6, 1992. The court released the jury at 6:00 p.m. that evening, and the jury resumed deliberating on Friday morning at 9:00 a.m. During its deliberations the jury submitted several questions to the court. At approximately 4:30 p.m. on Friday, the jury informed the court by note that "We are hopelessly deadlocked." The court decided to give the jury an Allen charge. Allen v. United States, 164 U.S. 492, 17 S.Ct. 154, 41 L.Ed. 528 (1896). Because it was almost five o'clock, however, the court decided to excuse the jury until Monday morning and give the Allen charge when the jury resumed deliberating. Felix moved for a mistrial on the ground that the jury was deadlocked. The court denied the motion and submitted to the jury a note that read as follows:

I have concluded that at this hour you must discontinue your deliberations and report at 9:00 a.m. on Monday, August 10, for the resumption of your deliberations. Accordingly, you must follow these rules:

1. Do not further discuss the case with any person. This includes each other.

2. Do not do any research on your own by consulting any independent source of information.

3. Do not resume any deliberations until all have assembled on Monday.

4. The Court will be providing you with an additional instruction as to your duties upon your return for deliberations.

A United States deputy marshal delivered the note to the jury. Within seconds of receiving the note, the jury informed the deputy that it had reached a verdict.

The district court decided not to receive the jury's verdict at that time and gave the jury the following note:

The notice of your having arrived at a verdict was sent to the Court after you had been advised by the Court to cease deliberations. Accordingly, the Court will not receive your verdict at this time.

You must return on Monday, August 10, 1992, at 9:00 a.m. for the purpose of resuming your deliberations and returning whatever verdict--whatever your verdict may be on Monday.

Felix moved for a mistrial on the ground that any verdict from the jury would be the product of coercion. The court denied the motion.

The jury resumed deliberations at 9:00 a.m. on Monday, August 10. Within five minutes, it announced that it had reached a verdict. Felix once again moved for a mistrial on the ground that the jury verdict had been coerced. The district court denied the motion and received the verdict.

The jury found Felix guilty of assault resulting in serious bodily injury and not guilty of assault with a dangerous weapon; it found Heron not guilty of both charges. The district court sentenced Felix to forty-six months' imprisonment, to be followed by two years of supervised release. This appeal followed.

II.

Felix first argues that the district court erred in not giving her proposed instruction on assault by striking, beating, or wounding. Assault by striking, beating, or wounding, 18 U.S.C. § 113(d), is a lesser included offense of assault resulting in serious bodily injury, 18 U.S.C. § 113(f). United States v. Young, 875 F.2d 1357, 1359 (8th Cir.1989). Both offenses are general intent crimes; neither requires a specific intent to cause bodily harm. United States v. Knife, 592 F.2d 472, 482 (8th Cir.1979). The distinguishing factor between the two offenses is the degree of injury that results from the assault. Whereas section 113(d) requires no particular degree of severity in the injury, section 113(f) requires, by definition, that the assault result in serious bodily harm. Id.

A defendant is entitled to a lesser included offense instruction if:

(1) a proper request is made; (2) the elements of the lesser offense are identical to part of the elements of the greater offense; (3) there is some evidence which would justify conviction of the lesser offense; (4) the proof on the element or elements differentiating the two crimes is sufficiently in dispute so that the jury may consistently find the defendant innocent of the greater and guilty of the lesser included...