U.S. v. Kills Crow, No. 75--1567

• Court: U.S. Court of Appeals — Eighth Circuit
• Writing for the Court: Before ROSS, STEPHENSON and WEBSTER; PER CURIAM
• Citation: U.S. v. Kills Crow, 527 F.2d 158 (8th Cir. 1975)
• Decision Date: 24 December 1975
• Docket Number: No. 75--1567
• Parties: UNITED STATES of America, Appellee, v. Whitney Paul KILLS CROW, Appellant.

Page 158

527 F.2d 158

UNITED STATES of America, Appellee, v. Whitney Paul KILLS CROW, Appellant.

No. 75--1567.

United States Court of Appeals Eighth Circuit.

Submitted Dec. 11, 1975.

Decided Dec. 24, 1975.

John T. Hughes, Morman, Smit & Shepard, Sturgis, S.D., for appellant.

William F. Clayton and Larry M. Von Wald and Bruce W. Boyd, Asst. U.S. Attys., Sioux Falls, S.D., for appellee.

Before ROSS, STEPHENSON and WEBSTER, Circuit Judges.

PER CURIAM.

In this appeal, Whitney Paul Kills Crow challenges his convictions of assault with a dangerous weapon in violation of 18 U.S.C. § 1153 and S.D.C.L. § 22--18--11 and of use of a firearm in the commission of a felony in violation of 18 U.S.C. § 924(c)(1). Appellant contends that the District Court ¹ erred in refusing to allow him to introduce evidence concerning the Indian concept of 'Toka' on the issues of provocation and justification. 'Toka', as explained by appellant, is a concept which, in its application, results in Indians of one reservation treating Indians from a different reservation as outcasts and enemies simply because of the fact that they are 'foreigners'.

Appellant shot one Rudolph Vargas in the leg on March 4, 1975, outside the home of Dale Bissonette on the Pine Ridge Indian Reservation, South Dakota. Appellant approached the Bissonette house that day, called for Vargas to come outside, and, when he did, shot Vargas in the leg. At trial, appellant's defense was that Vargas and other Indians had harassed and abused him and his family to such an extent that the shooting was provoked by Vargas's own actions. He made an offer of proof concerning the 'Toka' concept, claiming that an explanation of the concept would help the jury understand his reasons for shooting Vargas. He proposed to explain the issue to the jury through the use of an expert witness. The District Court rejected the offer because it felt that no proper foundation had been laid for such evidence. In so doing, the District Court said in chambers:

Well, we have got the offer of proof as to the toka or their feeling in the community. I am not going to let that testimony in. As far as what abuse this family may have had, not just imagined, but actual abuse, threats, or anything of that nature, of course, I think that is admissible. I think it's admissible even though it might not fall within the instructions of self-(defense). Still I think they are allowed to put it in, whatever degree that is.

Aren't we talking about a problem also of foundation? Now, assume for a moment--I don't know that this is the situation. I am just generally discussing this. Assume for the moment that the Defendant were able in all truth to say that he had been considered as an outsider, that he had been threatened and that he had been pushed around, and maybe his home or his person had been threatened or the person of his family had been threatened and that the reason for it was toka. Then he would be able to explain that he was in fact a person considered as a toka, as you say, and this might go to his frame of mind. But it would have to be, I think, tied to an actual, legitimate concern and fear, Number 1; Number 2, that the individual who had been shot was part of this activity or part of this threat to the home or to the person of the Defendant or his family.

But just starting out with a theory, reversing it and saying because he is a toka that he then has the right to fear, that would be putting it backwards. If he had threats, actual threats, and fear based upon certain acts of the victim--for lack of a better word, we will call him the 'victim,'-- and if he decided and said, 'Look. I have been threatened and this man was threatening me now and I decided not to have it happen on my homeground and pursued it until he stopped threatening my family or my home,' that would be another thing.

I am afraid we have foundation problems. I don't know how you can get into it with the toka concept except by way of explaining that's why they were doing certain things to him, insofar as there has been no evidence that they in fact have threatened him.

What I am saying at this point is there doesn't seem to be sufficient foundation for any introduction of any toka concept. If in fact aggressive acts by another individual have or would...