U.S. v. Joe

• Decision Date: 03 November 1993
• Docket Number: No. 92-2213,92-2213
• Citation: 8 F.3d 1488
• Parties: , 39 Fed. R. Evid. Serv. 920 UNITED STATES of America, Plaintiff-Appellee, v. Melvin JOE, Defendant-Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 1488

8 F.3d 1488

62 USLW 2355, 39 Fed. R. Evid. Serv. 920

UNITED STATES of America, Plaintiff-Appellee, v. Melvin JOE, Defendant-Appellant.

No. 92-2213.

United States Court of Appeals Tenth Circuit.

Nov. 3, 1993.

Stephen P. McCue, Asst. Federal Public Defender, Albuquerque, NM, for defendant-appellant.

David Williams, Asst. U.S. Atty. (Don J. Svet, U.S. Atty., and Joe M. Romero, Jr., Asst. U.S. Atty., were on the brief), Albuquerque, NM, for plaintiff-appellee.

Before LOGAN, TACHA and KELLY, Circuit Judges.

TACHA, Circuit Judge.

Melvin Joe, a Native American living on the Navajo Indian Reservation in New Mexico, was convicted of one count of first degree murder (Count I) and one count of second degree murder (Count II) in violation of 18 U.S.C. §§ 1153 and 1111(a). Mr. Joe was sentenced to life imprisonment for Count I and a concurrent term of life imprisonment for Count II. Joe appeals his conviction and sentence. We exercise jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742 and affirm in part, reverse in part, and remand for resentencing on Count II.

I. Background

A. General Background

Melvin Joe and Julia Joe were married in November 1980. Ms. Joe filed a petition for divorce in August 1991 and the couple separated. The Joes had four young children who continued to reside with Ms. Joe in Sanostee, New Mexico, a small, rural village located within the Navajo Indian Reservation.

On February 23, 1992, Melvin and his brother, Wallace Joe, drank beer continually throughout the morning and afternoon and Melvin passed out in Wallace's truck at approximately two o'clock. Sometime after six o'clock, Melvin drove a Chevrolet blazer belonging to his mother, Edith Joe, to his wife's residence. He knocked on the front door. When no one answered, he kicked open the door and entered the home brandishing an unloaded .22 caliber rifle. Melvin and Julia Joe fought and Melvin became physically abusive. Eventually, with the help of a neighbor, Matilda Washburn, Julia was able to get Melvin to leave the house.

Fearful that Melvin would return, Julia, Ms. Washburn, and one of the Joe children decided to leave the house and go to Ms. Washburn's home. As they exited, they noticed that Melvin had returned to the Blazer and was circling Julia's house. They stood next to the house for protection. The child, Jessica Joe, eventually ran to Ms. Washburn's house without interference. When Julia and Ms. Washburn tried to run, however, Melvin altered his circular pattern and drove straight at the fleeing Ms. Joe, striking her with the truck. Ms. Washburn went to the aid of the injured and screaming Julia Joe, helping her to the anticipated shelter of a nearby truck bed located in the field between the two houses. The truck bed, which had been completely removed from its frame, rested on four short wooden stumps.

Melvin apparently was undeterred by this new obstacle. He turned the Blazer in the direction of the truck bed, and, from a distance of approximately fifty feet, accelerated toward the truck bed, ramming the end of it opposite where the two women were standing. Upon impact, Melvin continued to accelerate, knocking the truck bed off the wooden stumps and pushing it over and onto Julia and Ms. Washburn. Still accelerating, Melvin pushed the truck bed forward another fifty feet, running over the two women.

Julia Joe and Ms. Washburn both died of multiple internal and external injuries caused by blunt force. After kicking Julia's body several times, Melvin put it in the Blazer and drove to a hilly area three miles from the crime scene. Officers later recovered the abandoned Blazer with the keys in the ignition and Julia's body still inside. Two days later, on February 25, 1992, Melvin Joe turned himself in. Joe was indicted for two counts of first degree murder.

B. Dr. Smoker's Testimony

At trial, defense counsel conceded that Melvin Joe had killed the two women. Mr. Joe's defense was that at the time of the killings he was intoxicated and enraged over the pending divorce, thus negating the requisite specific intent to sustain a conviction for first degree murder. With respect to Joe's intent, the government presented two types of evidence: the circumstances surrounding the murders and the testimony of Dr. Brett Smoker regarding statements made to him by Julia Joe. Dr. Smoker, an Indian Health Service family physician, testified that, eight days before Ms. Joe was killed, he treated her for an alleged rape and that she had identified her assailant as the defendant, Mr. Joe. (We will refer to Ms. Joe's comments regarding the alleged rape and her assailant as the "rape statement.") Dr. Smoker further testified that Ms. Joe stated she was "afraid sometimes" because Mr. Joe suspected her of having an extramarital affair and had threatened to kill her if he caught her with another man. (We will refer to Ms. Joe's comments regarding her fear and the basis for her fear as the "threat statement".)

The trial court admitted Dr. Smoker's testimony over defense counsel's timely objection, ruling on the evidence in two stages. The court first ruled that the threat and rape statements were admissible under the hearsay exception contained in Fed.R.Evid. 803(3) ¹, rather than the Rule 803(4) exception ² proffered by the government. The court then responded to defense counsel's objections under Fed.R.Evid. 404(b) ³. The court determined that the threat and rape statements were not precluded under Rule 404(b), as they were being offered to show Mr. Joe's "specific intent." The court also ruled that the relevance of the threat and rape statements was not outweighed by their prejudicial effect under Fed.R.Evid. 403.

After hearing the evidence, including the testimony of Dr. Smoker, the jury convicted Joe of first degree murder for killing his wife and second degree murder for killing Ms. Washburn.

C. Grounds for This Appeal

On appeal, Joe asserts the following errors: (1) Dr. Smoker's testimony that Melvin had previously raped and threatened Ms. Joe was inadmissible hearsay evidence and prejudicial "other acts" evidence which violated his rights under the Sixth Amendment's Confrontation Clause; (2) Dr. Smoker's testimony of Joe's prior incarceration violated his due process rights under the Fifth Amendment; (3) the government's peremptory strike of the only Native American juror on the venire violated his right to equal protection under the Fourteenth Amendment; (4) the trial court's admission of photographs of the two victims violated his rights to due process and a fair trial; (5) the trial court's jury instruction on "malice aforethought" violated his rights to due process and a fair trial; (6) the trial court's determination that life imprisonment is the mandatory minimum sentence for first degree murder was improper under the United States Sentencing Guidelines; and (7) the trial court's imposition of a life sentence for second degree murder was improper under the Guidelines.

II. Review of District Court's Rulings on Dr. Smoker's Testimony

Joe contends that Dr. Smoker's testimony contained inadmissible hearsay, "bad character" evidence barred by Rule 404(b), and that the admission of the rape and threat statements violated his rights under the Confrontation Clause. We review the admission of evidence for an abuse of discretion. United States v. Talamante, 981 F.2d 1153, 1155 (10th Cir.1992), cert. denied, --- U.S. ----, 113 S.Ct. 1876, 123 L.Ed.2d 494 (1993). Further, "[w]e may affirm the rulings on admission of evidence if that evidence is admissible under any of the Federal Rules of Evidence; this court is not bound by the evidentiary basis relied upon by the trial court for the admission of the challenged evidence." Fortier v. Dona Anna Plaza Partners, 747 F.2d 1324, 1331 (10th Cir.1984); see also United States v. Robinson, 978 F.2d 1554, 1562 (10th Cir.1992). We review Joe's claim under the Confrontation Clause de novo. See United States v. Ellzey, 936 F.2d 492, 495 (10th Cir.), cert. denied, --- U.S. ----, 112 S.Ct. 400, 116 L.Ed.2d 350 (1991).

A. Rule 803(3)

We first address whether the district court properly admitted Dr. Smoker's testimony under Rule 803(3), which excepts from the hearsay rule "[a] statement of the declarant's then existing state of mind, emotion, sensation, or physical condition (such as intent, plan, motive, design, mental feeling, pain, and bodily health), but not including a statement of memory or belief to prove the fact remembered or believed." Fed.R.Evid. 803(3). The court ruled that both the rape statement and the threat statement fell within the Rule 803(3) exception to the hearsay rule.

Rule 803(3) clearly sanctions the admission of a declarant's out-of-court statement concerning her then existing state of mind. See United States v. Donley, 878 F.2d 735, 737 (3d Cir.1989), cert. denied, 494 U.S. 1058, 110 S.Ct. 1528, 108 L.Ed.2d 767 (1990). With respect to the threat statement, Rule 803(3) therefore would extend to Ms. Joe's statement that she was "afraid sometimes." We disagree with the district court's ruling, however, because Ms. Joe's statement to Dr Smoker, though indicating her state of mind, also included an assertion of why she was afraid (i.e., because she thought her husband might kill her). This portion of Ms. Joe's statement is clearly a "statement of memory or belief" expressly excluded by the Rule 803(3) exception. See United States v. Rodriguez-Pando, 841 F.2d 1014, 1019 (10th Cir.1988). This situation is identical to that in United States v. Cohen, 631 F.2d 1223 (5th Cir.1980). In that case, a defendant charged with impersonating a federal officer contended that he lacked the requisite intent because he acted under duress. As evidence of duress, he sought to introduce out-of-court statements he had made relating alleged threats by Galkin, a co-conspirator. In admitting Cohen's out-of-court statement that he was scared but excluding the alleged basis for his...