U.S. v. Grey Bear
| Decision Date | 17 August 1989 |
| Docket Number | Nos. 86-5264,86-5265,s. 86-5264 |
| Citation | 883 F.2d 1382 |
| Parties | 28 Fed. R. Evid. Serv. 746 UNITED STATES of America, Appellee, v. Loren GREY BEAR, Tayron Dale Dunn, a/k/a Terry Dunn, Leonard George Fox and John Emmanuel Perez, a/k/a John Perez, Appellants. UNITED STATES of America, Appellee, v. Jesse Dean CAVANAUGH, Paul Henry Cavanaugh, Maynard James Dunn, Timothy Sylvester Longie, Jr., Roger Darrel Charboneau, Dwayne Allen Charboneau, Richard John LaFuente, a/k/a Ricky LaFuente, Appellants. |
| Court | U.S. Court of Appeals — Eighth Circuit |
David C. Thompson, Fargo, N.D., for Grey Bear.
Dennis Fisher, Fargo, N.D., for U.S.
Before LAY, Chief Judge, HEANEY, Senior Circuit Judge, and JOHN R. GIBSON, Circuit Judge.
These appeals arise from the roadside assault and death of Eddie Peltier and the resulting convictions of Richard LaFuente for first-degree murder, John Perez for second-degree murder, Jesse Cavanaugh, Loren Grey Bear and Perez for witness tampering, and Grey Bear and Leonard Fox for perjury. In our earlier panel decision, we held the evidence sufficient to sustain these convictions, but determined that the evidence was insufficient to sustain several other judgments of conviction entered against these appellants and others. See United States v. Grey Bear, 828 F.2d 1286 (8th Cir.1987). The panel also ruled that joinder was improper, leading to a rehearing en banc in which the court, by an equally divided vote, affirmed the district court's ruling holding joinder to be proper. See United States v. Grey Bear, 863 F.2d 572 (8th Cir.1988) (en banc). We now consider the remaining issues not yet decided by either the original panel or the court en banc. The appellants primarily argue that the district court erred in framing jury instructions, in foreclosing cross-examination of one witness, and in permitting improper closing arguments. We have carefully considered all issues raised by appellants, and affirm the remaining judgments of conviction against each of them.
Appellants argue that the district court improperly charged the jury with respect to the offenses of assault resulting in serious bodily injury, 18 U.S.C. Sec. 113(f), and murder, 18 U.S.C. Sec. 1111. In particular, they contend that Instruction 34 was constitutionally defective in that it directed the jury to escalate a conviction on the lesser charge of assault to one of murder merely upon a showing that the assault resulted in death. The instruction stated that if an assault inflicted serious bodily injury, and the victim died as a result of the injury, the crime of assault merges with that of homicide. 1 The jury was told that if it found such injury and resulting death occurred, it was to determine "the form of homicide, if any, that the defendant may have committed." The jury was further instructed that it could not find a defendant guilty of both homicide and assault. Appellants maintain that this instruction sidestepped the required element of criminal intent for murder. Appellants similarly argue that Instruction 37 was defective in that, with regard to "an assault which results in serious bodily injury or death," it provided that "it is not necessary for the government to prove" that a defendant intended to cause death. 2
Appellants failed to object to Instruction 34, and, while objection was made in passing to Instruction 37, the particular arguments now presented regarding that instruction were not presented to the district court. We therefore review any challenge to those instructions on a plain error basis. See Fed.R.Crim.P. 30; United States v. Martin, 751 F.2d 258, 261 (8th Cir.1984); United States v. Hecht, 705 F.2d 976, 978-79 (8th Cir.1983); United States v. Parisien, 574 F.2d 974, 976 (8th Cir.), cert. denied, 439 U.S. 850, 99 S.Ct. 154, 58 L.Ed.2d 154 (1978). Moreover, if there were plain error, it affected only Richard LaFuente, who was convicted of first-degree murder, and John Perez, who was convicted of second-degree murder. The error, if any, had no prejudicial effect with respect to the convictions of Cavanaugh, Grey Bear and Perez for witness tampering or Grey Bear or Fox for perjury. Finally, jury instructions must be viewed as a whole, and we will not find error in a portion of one instruction without considering the instructions in their entirety. United States v. Kabat, 797 F.2d 580, 588 (8th Cir.1986), cert. denied, 481 U.S. 1030, 107 S.Ct. 1958, 95 L.Ed.2d 530 (1987).
Here, the role of the challenged instructions is apparent. Instruction 34 dealt with the interaction between charges of assault and homicide, and with respect to a conviction on homicide required the jury to refer to other instructions "heretofor [sic] given pertaining to first degree murder and the lesser included offenses of second degree murder and voluntary manslaughter." 3 Appellants do not submit that these other instructions erred in defining the various degrees of homicide, and we observe that in each instance these instructions expressly required the jury to find an appropriate level of intent.
The purpose of Instruction 34 was to inform the jury that it could not return a verdict finding the same defendant guilty of both assault and homicide. The instruction's specific reference to other instructions on assault and homicide directed the jury to requirements in those instructions that it find intent in order to convict. That every paragraph of Instruction 34 did not refer to intent, therefore, does not render it plainly erroneous. And, contrary to appellants' argument, the instruction did not require the jury to find each of the defendants guilty of some form of murder; it stated that where an assault results in death, the jury must determine the form of homicide, "if any," that may have been committed. This clearly allowed the jury to find a defendant guilty of murder, of manslaughter, or of nothing at all. The instruction concluded that the jury may find defendants guilty of homicide, of assault, "or for that matter not guilty of any offense" if that result was consistent with the facts "and these instructions." In guiding the deliberations of the jury, the instruction thus simply informed it of the available choices.
Instruction 37 did not refer specifically to other instructions. In defining the offense of assault resulting in serious bodily injury or death, however, it expressly required the jury to find that a defendant was a participant and not simply a knowing spectator. The instruction accurately reflects the case law interpreting 18 U.S.C. Sec. 113(f), which appellants were alleged to have violated under Count Two of their indictment. See United States v. Knife, 592 F.2d 472, 483 (8th Cir.1979) (); United States v. Eagle, 586 F.2d 1193, 1196 (8th Cir.1978). We need not determine that the instruction is a model to ascertain that it is free from plain error. Here, Instruction 37 placed sufficient limits on the jury's deliberations with regard to the charges of assault.
Although these two instructions perhaps could have been more carefully drafted, the factual circumstances of this case made their submission understandable. The evidence established that a series of confrontations occurred between Peltier and a group of individuals. On two occasions, Peltier broke away, only to be pursued and caught. Testimony identified various appellants as participating in some of these confrontations, but not in others. The assault was ongoing and took place over some distance. Under the doctrine of merger, however, an individual once found guilty of murder could not also be separately punished for assault for the same acts. See generally 40 C.J.S. Homicide Sec. 20 (1944 & Supp.1989) (citing cases). While the nature of these events therefore justified charging all defendants with both assault resulting in serious bodily injury and homicide, it was apparent that some could be found guilty of assault while others could be convicted on the more serious charges of murder or manslaughter. Explicit instruction concerning the relationship between these charges undoubtedly was helpful to the jury, and we conclude there is no plain error in the submission of Instructions 34 and 37.
Appellants also urge error in the district court's failure to adopt their tendered instruction on eyewitness identification. Although the jury was instructed as to issues of credibility, 4 appellants contend that the district court's charge was inadequate in failing to conform with the instruction on eyewitness identification established in United States v. Telfaire, 469 F.2d 552, 558-59 (D.C.Cir.1972), as it is reversible error to refuse such an instruction where the government's case rests solely on questionable eyewitness identification. United States v. Mays, 822 F.2d 793, 798 (8th Cir.1987). In particular, appellants assert that Instruction 54 was defective in that it did not expressly command the jury to consider the condition of each witness while allegedly observing Eddie Peltier's killing. 5 They stress that one witness, Fred Peltier, had consumed fifteen cans of beer and smoked two or three joints of marijuana on the day of Peltier's death, and that other witnesses similarly suffered from diminished capacity from drinking alcohol or smoking marijuana.
The jury, however, was specifically directed to consider the ability of each witness to observe matters on which the witness had testified. It was told to question whether each witness possessed an accurate recollection of these matters. It was further told that, in evaluating identification testimony, it should consider "whether the witness had an adequate opportunity to observe the person...
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...defendant to impeach testimony of hearsay declarant, under Rule 806, by bringing out his criminal background. United States v. Greybear , 883 F.2d 1382 (8th Cir. 1989). Government may impeach any witness, unless it calls a witness merely as a subterfuge to place otherwise inadmissible hears......
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