U.S. v. Lonedog

• Decision Date: 02 April 1991
• Docket Number: No. 90-8040,90-8040
• Citation: 929 F.2d 568
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Richard Donald LONEDOG, Defendant-Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 568

929 F.2d 568

UNITED STATES of America, Plaintiff-Appellee, v. Richard Donald LONEDOG, Defendant-Appellant.

No. 90-8040.

United States Court of Appeals Tenth Circuit.

April 2, 1991.

Daniel G. Blythe, Blythe & Lewis, Cheyenne, Wyo., for defendant-appellant.

Lisa E. Leschuck, Asst. U.S. Atty. (Richard A. Stacy, U.S. Atty., with her on the brief), D.Wyo., Cheyenne, Wyo., for plaintiff-appellee.

Before ANDERSON and EBEL, Circuit Judges, and SAFFELS, ^* District Judge.

STEPHEN H. ANDERSON, Circuit Judge.

Richard Donald Lonedog was convicted of committing sexual abuse in Indian Country, in violation of 18 U.S.C. Secs. 1153 and 2242(1). He appeals, contending that the district court erroneously limited his cross examination of the alleged victim, and that prosecutorial misconduct denied him a fair trial. We affirm.

The relevant facts are in dispute. Renata White alleges, and Lonedog denies, that Lonedog raped her on September 20, 1988. She and Lonedog agree that, while Lonedog was giving her a ride, they stopped at an abandoned house known as "The Farm." According to White, Lonedog stopped the car and forced her to go inside with him, where he raped her. According to Lonedog, White consented to engaging in intercourse there. Their respective stories differ dramatically, and the trial below centered on the credibility of White, Lonedog, and the witnesses called to corroborate their respective accounts.

I.

Lonedog first contends that the district court improperly limited his cross-examination of White concerning her physical condition before and after the rape. Lonedog does not cite to, nor do we find, any such limitation in the record. To the contrary, the record reveals considerable cross-examination of White concerning her physical condition both before and after the rape. R.Vol. VII at 231-68.

Lonedog does cite to the district court's exclusion of testimony offered to impeach White's credibility. R.Vol. VII at 430-34. He apparently alleges that exclusion of the testimony denied him his right to confrontation. In support of this proposition he cites United States v. Atwell, 766 F.2d 416 (10th Cir.), cert. denied, 474 U.S. 921, 106 S.Ct. 251, 88 L.Ed.2d 259 (1985) and United States v. Valentine, 706 F.2d 282 (10th Cir.1983). These cases stand for the proposition that the defendant's right to confrontation may be violated if the trial court precludes an entire relevant area of cross-examination. However, as we have already stated, the excluded evidence was another witness's testimony, not the cross-examination of White. Moreover, the record reveals that the district court excluded the proffered testimony because it was irrelevant.

"In reviewing the evidentiary rulings of a trial court, we may not reverse in the absence of an abuse of discretion." United States v. Alexander, 849 F.2d 1293, 1301 (10th Cir.1988) (citing United States v. Rodriguez-Pando, 841 F.2d 1014, 1018 (10th Cir.1988)). Lonedog's offer of proof indicated that the testimony would show White was beaten by her boyfriend 24 hours after the alleged rape. The government argued such evidence was irrelevant to whether Lonedog raped White. In response, Lonedog suggested, and now alleges on appeal, that the jury could infer from the fact of the beating that White's boyfriend had beaten her because she had engaged in consensual intercourse with Lonedog. He further suggested that the beating established motivation for White to untruthfully characterize the incident as a rape in order to avoid further physical abuse from her boyfriend.

We disagree. Evidence that White's boyfriend beat her is in no way relevant to the issue of whether she consented to intercourse with Lonedog. As for the alleged motive to lie, by the time the beating supposedly occurred, White had already told her friends, law enforcement officers, and medical personnel that she had been raped. We cannot say that the trial court abused its discretion in refusing to admit this irrelevant and potentially prejudicial testimony into evidence.

II.

The remainder of Lonedog's arguments on appeal are essentially allegations of prosecutorial misconduct. He asserts that certain questions posed by the prosecutor in her examination of various witnesses were improper and constitute reversible error. In order to preserve alleged error for appeal, however, a party must make a timely and proper objection. United States v. Taylor, 800 F.2d 1012, 1017 (10th Cir.1986), cert. denied, 484 U.S. 838, 108 S.Ct. 123, 98 L.Ed.2d 81 (1987). If the party fails to object, we will only reverse for plain error. Id. "Plain error is 'fundamental error, something so basic, so prejudicial, so lacking in its elements that justice cannot have been done.' " United States v. Henning, 906 F.2d 1392, 1397 (10th Cir.1990) (quoting United States v. Coppola, 486 F.2d 882, 884 (10th Cir.1973), cert. denied, 415 U.S. 948, 94 S.Ct. 1469, 39 L.Ed.2d 563 (1974)) (emphasis in original), cert. denied, --- U.S. ----, 111 S.Ct. 789, 112 L.Ed.2d 852 (1991). Thus, we first consider the questions to which Lonedog failed to object, and review them for plain error.

Lonedog contends that he was denied a fair trial and due process of law when the prosecutor, on cross-examination, asked whether he was incarcerated. R.Vol. VIII at 556. For support, Lonedog cites Estelle v. Williams, 425 U.S. 501, 96 S.Ct. 1691, 48 L.Ed.2d 126, reh'g denied, 426 U.S. 954, 96 S.Ct. 3182, 49 L.Ed.2d 1194 (1976), in which the Supreme Court held that a defendant may not be compelled to stand trial in his prison clothing. Lonedog's situation is very different. First, the Estelle Court's holding was based on the "continuing [prejudicial] influence throughout the trial," id. at 505, 96 S.Ct. at 1693, that a defendant's prison clothing could have on the jury. The prosecutor's question in this case was an isolated, not a "continuing," occurrence. Second, the prosecutor posed the objectionable question only moments before properly eliciting from Lonedog the fact that he had been convicted of a felony several years earlier. Any prejudice to Lonedog was limited by the jury learning the basis for his incarceration. Third, even if we apply Estelle 's principle to the prosecutor's question, the Estelle Court held that any claim of constitutional error is waived by the defendant's failure to object. Id. at 512-13, 96 S.Ct. at 1696-97. Lonedog did not object to the question regarding his incarceration. We hold that it did not constitute plain error.

Lonedog also challenges the questions posed in the following exchange between the prosecutor and defense witness Lucy Moss, Lonedog's ex-wife, regarding Moss's relationship with Lonedog:

Q: [BY MS. LESCHUCK] And aren't you afraid of him?

A: [MOSS] No.

Q: You're not afraid of him? Were you afraid of him at one time?

A: At one time I was.

Q: When was that?

A: That was when he hit me with a flashlight.

Q: Do you remember testifying in front of the grand jury?

A: Yes, I do.

Q: Do you remember telling the grand jurors why you were scared of him?

A: Because he hit me with a flashlight.

R.Vol. VIII at 472-73.

Lonedog asserts that the question eliciting this testimony was "directly in violation of the Order in Limine and the prosecutor's assurances (Motion Hearing, Vol. X, pp. 7 and 10-12, 14-15 and again in the Trial Transcript, Vol. II, at page 275-276)." The order to which he refers, however, governed the prosecution's attempts to elicit Georgianne Shamblem's testimony that she had been raped by Lonedog. In no way does the cited record address the prosecution's cross-examination of Lucy Moss. When that issue was addressed, the prosecution informed the court and Lonedog of its intention to use Moss's grand jury testimony if the defense called her as a witness. R.Vol. X at 39. More importantly, the court specifically ruled that the grand jury testimony could be "spread upon the record" if Moss were called. Id. at 41-42. Thus, the questions were proper to establish the possibility that Moss's fear of Lonedog tainted her testimony on his behalf. Moreover, any possible prejudice was mitigated by the following cautionary instruction:

I'd caution you ladies and gentlemen, with regard to this matter of whether or not Mr. Lonedog hit his ex-wife at any time. It should not be considered by you in determining whether or not the charges against Mr. Lonedog here have any substance.

R.Vol. VIII at 480. We hold that the exchange regarding the flashlight did not constitute plain error.

Lonedog also challenges the following questioning concerning his relationship with Lucy Moss:

Q: [BY MS. LESCHUCK] How would you characterize your relationship with her while you were in Denver?

A: [LONEDOG] Well, it's like this. We were putting up with each other because of the fact of our son, you know, to be perfectly honest.

Q: And isn't it true she wrote a letter to Social Services complaining about you?

A: I have no knowledge of that, no.

R.Vol. VIII at 531.

Lonedog contends that the latter question impermissibly introduces evidence of a prior bad act. We disagree. The question regards an act of Lucy Moss. Although the question may have been objectionable as irrelevant or calling for speculation, Lonedog did not object to it at all, let alone as constituting impermissible evidence of a prior bad act. This vague reference to Lonedog does not come close to creating the sort of fundamental injustice that constitutes plain error.

III.

We next turn to the claims that Lonedog preserved by properly objecting. Reviewing such claims of prosecutorial misconduct entails a two-step analysis. We must first determine whether the conduct was, in fact, improper. United States v. Martinez-Nava, 838 F.2d 411, 416 (10th Cir.1988). If the conduct was improper, we must then determine whether it warrants reversal. Id. Prosecutorial misconduct does not warrant reversal if it was harmless error. United States v. Alexander, 849 F.2d 1293, 1296 (10th Cir.1988); United...