U.S. v. Knife

• Decision Date: 15 February 1979
• Docket Number: 78-1394,Nos. 78-1391,s. 78-1391
• Citation: 592 F.2d 472
• Parties: 4 Fed. R. Evid. Serv. 284 UNITED STATES of America, Appellee, v. James Felix KNIFE, Appellant. UNITED STATES of America, Appellee, v. Leroy Lavern IYOTTE, Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 472

592 F.2d 472

4 Fed. R. Evid. Serv. 284

UNITED STATES of America, Appellee, v. James Felix KNIFE, Appellant.

UNITED STATES of America, Appellee, v. Leroy Lavern IYOTTE, Appellant.

Nos. 78-1391, 78-1394.

United States Court of Appeals,

Eighth Circuit.

Submitted Oct. 17, 1978.

Decided Feb. 15, 1979.

Robert C. Riter, Jr., Riter, Mayer, Hofer & Riter, Pierre, S. D., for appellant, Knife.

Stanley E. Whiting, Day & Grossenburg, Winner, S. D., for appellant, Iyotte.

Gary G. Colbath, Asst. U. S. Atty., Sioux Falls, S. D., for appellee. David V. Vrooman, U. S. Atty., and John J. Ulrich, Asst. U. S. Atty., Sioux Falls, S. D., on the brief.

Before ROSS and McMILLIAN, Circuit Judges, and LARSON, Senior District Judge. ^*

LARSON, Senior District Judge.

Defendants James Felix Knife and Leroy Lavern Iyotte appeal from convictions entered against them following a jury trial in the United States District Court for the District of South Dakota, Central Division. ¹ Defendants were indicted on two counts. Count I of the indictment charged that on or about the 15th day of October 1977, in the District of South Dakota at the White River Indian housing area, defendants did wilfully and unlawfully assault and aid, abet, counsel, induce and procure the assault of Patrolman Ted Huddleston of the White River Police Department with intent to murder, in violation of 18 U.S.C. §§ 1153 and 113(a). Count II of the indictment charged defendants with assault resulting in serious bodily injury, in violation of 18 U.S.C. §§ 1153 and 113(f). ²

At the conclusion of the trial, the jury found defendant Knife not guilty as to Count I of the indictment but guilty as to Count II. Defendant Iyotte was found not guilty as to Count I but guilty of the lesser included offense of assault by striking, beating or wounding, 18 U.S.C. § 113(d). The jury also found defendant Iyotte guilty as charged in Count II of the indictment. The Court entered judgment accordingly on May 19, 1978, ³ and this appeal followed. For the reasons set forth below, we reverse as to defendant Knife but affirm as to defendant Iyotte.

On appeal, defendants argue initially that the trial court erred in refusing to enter a judgment of acquittal for lack of evidence sufficient to convict. In examining this alleged error, under well established principles of review, we must assume the truth of the Government's evidence and give the Government the benefit of all reasonable inferences that logically may be drawn therefrom. United States v. Cox, 580 F.2d 317, 323 (8th Cir. 1978); United States v. Wisdom, 534 F.2d 1306, 1309 (8th Cir. 1976). We are further guided in our analysis by the general rule that it is not necessary to sustain a conviction that the evidence "exclude every reasonable hypothesis except that of guilt (; it is enough) that it be sufficient to convince the jury beyond a reasonable doubt that the defendant is guilty." United States v. Shahane, 517 F.2d 1173, 1177 (8th Cir.), Cert. denied, 423 U.S. 893, 96 S.Ct. 191, 46 L.Ed.2d 124 (1975). The essential elements of the charge may be proved by either direct or circumstantial evidence since circumstantial evidence is intrinsically as probative as direct evidence. United States v. Cox, supra at 323. The jury may not, however, be permitted to convict based upon mere conjecture or to conclude upon pure speculation or from passion, prejudice or sympathy. Curley v. United States, 81 U.S.App.D.C. 389, 392, 160 F.2d 229, 232, Cert. denied, 331 U.S. 837, 67 S.Ct. 1511, 91 L.Ed. 1850 (1947).

We are well aware that the standard to be applied by an appellate court in determining sufficiency of the evidence is a strict one and that a jury's determination should not be overturned lightly. Moreover, we recognize that any review of the evidence by an appellate court is made difficult because it must necessarily be based on a cold record. Nonetheless, having examined the trial transcript in the instant case with care, we believe there was evidence insufficient to enable a reasonable jury to have found defendant Knife guilty beyond a reasonable doubt. Hence, as to defendant Knife we reverse.

At trial the Government did not allege, and no evidence was presented to suggest that defendant Knife was a direct participant in the actual assault on Patrolman Huddleston. Instead, the Government attempted to demonstrate that defendant Knife had aided and abetted the assault by defendant Iyotte through his participation in a scheme to lure Patrolman Huddleston onto Indian property and into an ambush. This Court has recently reaffirmed that before a defendant can be convicted of aiding and abetting, it must be shown "that the defendant had a 'purposeful attitude' and in some manner participated in the unlawful deed. . . . Essentially, this requires the existence of 'some affirmative participation which at least encourages the perpetrator.' " United States v. Holder, 566 F.2d 617, 619 (8th Cir. 1977), quoting United States v. Crow Dog, 532 F.2d 1182, 1194-95 (8th Cir. 1976).

In the instant case, the only evidence adduced to suggest the basis for a "purposeful attitude" or intent on the part of defendants Knife and Iyotte to assault Patrolman Huddleston were two statements attributed to Knife after the shooting. The first statement, allegedly made by Knife while in the custody of FBI agents, was to the effect that tensions were high in the Indian community of White River because a Bruce Joseph White Buffalo had died in the Mellette County Jail on October 13, 1977, an act for which the Indian community blamed white Patrolman Huddleston. In addition, the Government introduced evidence that immediately after the shotgunning of Huddleston, Knife explained to Trooper Larry Ottenbacher of the South Dakota State Highway Patrol that "you didn't think we'd just let him off for killing one of our friends in the jail the other night, did you?"

There is some discrepancy in the testimony concerning the sequence of events that lead up to the actual shooting. Taking the evidence in the light most favorable to the Government, however, the jury could reasonably have found that immediately prior to the shooting incident on October 15, 1977, defendants Knife and Iyotte left the Indian housing area in Knife's blue and white pickup truck heading for downtown White River. They were accompanied by one or two other males according to Knife's neighbor, Joyce Black Wolf, who saw the truck leave the housing area and drive over the island dividing the highway into White River. In less than ten minutes, Joyce Black Wolf saw the pickup return followed by police vehicles.

During the interim, defendants Knife and Iyotte apparently went into the Municipal Liquor Store operated by Lester Ham. Despite uncontradicted testimony that defendant Knife had been drinking on and off for more than 24 hours, Ham testified that neither Knife nor Iyotte appeared intoxicated to him when they entered his store at about 4:30 p. m. Therefore, he served them. Before leaving the store after making his purchase, Knife pulled down a couple of paper signs and destroyed several displays in the liquor store.

After Knife and Iyotte left, Ham heard a commotion outside after which defendant Iyotte came running back into the store indicating he wanted to take an additional display. The commotion Ham heard occurred when defendant Knife carried a city garbage can into the middle of the street, turned it over and began to beat on it. There was some testimony that defendant Iyotte attempted to dissuade Knife from his antics. At any rate, both defendants subsequently got back into Knife's pickup and with a great deal of noise and screeching of tires pulled across the street and drove down the sidewalk on the opposite side of the street, finally stopping in front of the main grocery store in White River. At about this time, the Deputy Sheriff of Mellette County, Ed Hill, came around the corner onto main street. As soon as the defendants saw the Deputy's truck, they drove toward it and when Knife's pickup drew along side Deputy Sheriff Hill's vehicle, defendant Knife reportedly confronted Hill, inquiring of him, "I suppose you called for help?"

Hill had in fact called for assistance and shortly thereafter a State highway patrol vehicle driven by Trooper James Halverson arrived on the scene. As the highway patrol car approached defendant Knife commenced driving slowly in the direction of the patrol car. As Knife passed the vehicle, a shouting match took place between Knife and Trooper Halverson. According to Halverson's testimony, Knife swerved to avoid hitting Halverson's car and as he did so yelled "So you want to kill Indians huh." After a further exchange of words, Knife started off driving slowly out of town. Trooper Halverson testified that he thought he saw the butt of a shotgun transferred among the passengers as the Knife vehicle pulled away and one of the passengers gestured to him in an obscene manner. Halverson re-entered his car, did a U-turn on main street and got behind the Knife pickup. As the highway patrol began to catch up to him, Knife entered the highway just west of main street and cut across the highway toward the Indian housing area. During this time, defendants continued to proceed at a slow rate of speed refusing to let Halverson around their vehicle. In addition, Knife was hollering out the window and waving the Trooper on.

As the Knife vehicle entered the Indian housing area, Ted Huddleston, responding to a call for help, was approaching from the southerly part of town but was at the time still some three blocks south of the entrance to the housing area. Huddleston had not been downtown prior to this time during the afternoon in question, although there was some testimony that he had at one point earlier in the day been parked across the highway from the Indian housing area while servicing his car. There was no testimony that Knife had seen Ted Huddleston prior to...