U.S. v. McRae

Citation593 F.2d 700
Decision Date23 April 1979
Docket NumberNo. 78-5152,78-5152
Parties4 Fed. R. Evid. Serv. 503 UNITED STATES of America, Plaintiff-Appellee, v. Stephen Roderick McRAE, Defendant-Appellant.
CourtUnited States Courts of Appeals. United States Court of Appeals (5th Circuit)

Lucien B. Campbell, Federal Public Defender, C. Larry Mathews, Jr., Asst. Public Defender, El Paso, Tex., for defendant-appellant.

Jamie C. Boyd, U. S. Atty., LeRoy M. Jahn, F. G. Rodriguez, James E. Bock, Asst. U. S. Attys., San Antonio, Tex., for plaintiff-appellee.

Appeal from the United States District Court for the Western District of Texas.

Before INGRAHAM, GEE and FAY, Circuit Judges.

GEE, Circuit Judge:

About two years ago, appellant McRae killed his wife Nancy by shooting her through the head with his deer rifle at point-blank range. That he did so is admitted; his sole defense at trial was that the shooting was not malicious but accidental. The offense having occurred on the Fort Bliss military reservation, McRae was indicted for second-degree murder under 18 U.S.C. § 1111. A jury trial resulted in his conviction and sentence to life imprisonment. His appeal asserts numerous and disparate errors; and we commence with a summary review of the evidence, restating facts necessary to our consideration of each point as we treat it. Though the case is difficult in some aspects and in one very disturbing we affirm.

Facts

McRae was a military policeman on active duty at the time of the murder. He and his wife were on strained terms, in part because of his belief that she had been guilty of various types of misconduct during his absence on an overseas tour of duty. At numerous times during the last year of her life, he admittedly made statements to various witnesses out of her presence that he meant to kill her. Some of these may be viewed as mere jests in atrocious taste, but there was evidence, which the jury could have believed, that some were seriously and soberly made. Specifically, viewed in the light most favorable to the guilty verdict, the evidence established that on at least one occasion he threatened to blow her brains out with the very rifle with which he later did so. 1 At another time he stated that he had talked to a lawyer about killing her and that he could "beat it." On several occasions he vilified her in street language and stated that he would have to kill her because he did not want her rearing their children.

On the day of Mrs. McRae's death, she and McRae had agreed that he would move into barracks for a few days in consequence of their strained relationship. Late in the afternoon he came home to move out but, finding friends visiting, decided to return later. As he went to his automobile, Mrs. McRae followed. There they had harsh words before he drove away to barracks, McRae warning her to be gone when he returned. He remained there about an hour, drank beer, and made further angry threats to kill her. He then returned home to find a cold dinner and a scolding wife. Sending the children into the bathroom, he took down the rifle from its rack in the living room. He then procured a round of ammunition from the bedroom and returned to the living room, where his wife was sitting in a chair. While talking to her he loaded the gun and worked its action, chambering the round. With the gun thus cocked and loaded, he started toward his wife in response, he testified, to her invitation to approach her. As he came on, the gun discharged, shattering Mrs. McRae's skull and killing her instantly. 2

McRae then ejected the spent cartridge, pocketed it, and drove with his gun to a neighbor's home two doors down, leaving his children in the bathroom. To the neighbors he appeared severely agitated, stated that his wife was "not all right" and that he "had to do it," and asked the woman of the house to see to his children. He then drove to barracks and accosted a fellow M.P., stating that he had just killed his wife and suggesting that they have a beer. At no time did he examine his stricken wife or seek to aid her in any way. His explanation was that she was manifestly dead and that he did not wish to touch her. As to this, the photographs in evidence amply bear him out. McRae was later arrested without incident, tried, and found guilty of murder with malice by a jury.

Complaints About the Jury Charge

Of the three that McRae makes, one is serious. Among the instructions that the court gave the jury appears a variation on the Mann 3 charge, a type of instruction with which for fourteen years this court conducted an inconclusive and frustrating engagement. These campaigns are detailed in our en banc opinion in United States v. Chiantese, 560 F.2d 1244 (5th Cir. 1977), and there is no need to reiterate them at length here. Suffice it to say that the classic Mann instruction was one intended to guide the jury in its deliberations on criminal intent, the sole contested issue in this case. It contained two elements, the first innocuous and the second doubtful, sometimes depending on its phrasing and that of the remainder of the charge reversible.

The innocuous element is advice to the jury that they may infer intent from the defendant's knowing conduct, often accompanied by some such observation as that since one cannot look into the human mind, what one intends must usually be deduced from what he does.

The second, dubious element is injected "when words are changed or added which shift the prosecution's burden of proof and when . . . the defendant's act is equally susceptible of innocent motive and guilty purpose." Chiantese, id. at 1245. Mann itself was a tax case involving the omission of cash items from income by a physician: mistakenly, according to him; deliberately, according to the government. The charge there held to constitute reversible error ran: (First element) " 'It is reasonable to infer that a person ordinarily intends the natural and probable consequences of acts knowingly done or knowingly omitted.' " (Second element) " 'So unless the contrary appears from the evidence, the jury may draw the inference . . . .' " 560 F.2d at 1246, emphasis added. We held that the giving of the second element of this instruction, so phrased, shifted the burden of proof to the defendant, requiring him to prove a lack of intent. Other cases, however, often refused to reverse for the giving of a Mann -type instruction where other portions of the charge made plain that the burden was and remained on the government to prove the requisite specific intent, E. g., Windisch v. United States, 295 F.2d 531 (5th Cir. 1961) (pre-Mann ); where the charge emphasized elsewhere the presumption of innocence, Estes v. United States, 335 F.2d 609 (5th Cir. 1964), Cert. denied, 379 U.S. 964, 85 S.Ct. 656, 13 L.Ed.2d 559 (1965); where the actions of the defendant were less ambiguous than in Mann, Helms v. United States, 340 F.2d 15 (5th Cir. 1964), Cert. denied, 382 U.S. 814, 86 S.Ct. 33, 15 L.Ed.2d 62 (1965) (exact Mann language, but defendant kept double books and fabricated false cash tickets), etc. Countless distinguishments and variations followed, with disparate results, as our trial courts doubtless abetted by the presence of the precise Mann language in a well-known and generally available form book continued to use variations of the charge, and we continued to fuss, distinguish, and (often) affirm.

This history is carefully detailed in United States v. Chiantese, 560 F.2d 1244 (5th Cir. 1977) (en banc). There we closed the books on Mann, directing in the exercise of our supervisory powers that no further charges incorporating any version of Mann's second element anything reasonably subject to interpretation as "shifting the burden to the accused to produce proof of innocence" be given. 560 F.2d at 1255. We added as well that we would not, in the event that such were used, attempt to salvage the charge by reference to other portions of it. We also declared, however, that should such an instruction be given we would weigh the harm to the accused as a judicial matter, rather than reverse out of hand. Chiantese does not strictly apply to this case, which was tried at the very end of its 90-day grace period, but we are not forbidden to be guided by its wisdom. It is, moreover, at least as favorable to the accused as earlier available authorities upon which we might base our reasoning and result here.

We commence our examination of McRae's charge with a recognition that the essential vice of the Mann instruction is its arguable effect to "place a burden upon the defendant to produce evidence to overcome a presumption of guilt." United States v. Wilkinson, 460 F.2d 725, 733 (5th Cir. 1972). The pertinent portion of the charge here reads:

"Malice aforethought" means an intent, at the time of a killing, willfully to take the life of a human being, or an intent willfully to act in callous and wanton disregard to the consequences of human life, but malice aforethought does not necessarily imply any ill will, spite or hatred towards the individual killed.

"Malice" as the term is used here, is but another name for a certain state or condition of a person's mind or heart. Since no one can look into the heart or mind of another, the only means of determining whether or not malice existed at the time of a killing is by inference drawn from the surrounding facts and circumstances as shown by the evidence in the case.

Now, in determining whether the decedent, Nancy E. McRae, was unlawfully killed with malice aforethought, the jury should consider all the facts and circumstances preceding, surrounding and following the killing as shown by the evidence in the case which tend to shed light upon the condition of mind and heart of Stephen Roderick McRae before and at the time of the deed. No fact, no matter how small, no circumstance, no matter how trivial, which bears upon the question of malice aforethought, should escape careful consideration by the jury.

An act is done knowingly if done voluntarily and...

To continue reading

Request your trial
246 cases
  • United States v. Chagra, SA-82-CR-57(4).
    • United States
    • United States District Courts. 5th Circuit. Western District of Texas
    • February 26, 1986
    ...callous and wanton disregard of the consequences to human life. See Court's charge in the original trial of this cause; United States v. McRae, 593 F.2d 700 (5th Cir.), reh'g denied, 597 F.2d 283 (en banc), cert. denied, 444 U.S. 862, 100 S.Ct. 128, 62 L.Ed.2d 83 This hierarchy of culpabili......
  • Moore v. Ashland Chemical, Inc.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • October 20, 1997
    ...relevant evidence; and its probative value must be substantially outweighed by that danger. As this court stated in United States v. McRae, 593 F.2d 700, 707 (5th Cir.), cert denied, 444 U.S. 862, 100 S.Ct. 128, 62 L.Ed.2d 83 Relevant evidence is inherently prejudicial; but it is only unfai......
  • U.S. v. Pace, 90-1992
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • December 17, 1993
    ...evidence is inherently prejudicial; but it is only unfair prejudice, substantially outweighing probative value, United States v. McRae, 593 F.2d 700, 707 (5th Cir.), cert. denied, 444 U.S. 862, 100 S.Ct. 128, 62 L.Ed.2d 83 which permits exclusion of relevant matter under Rule 403. Unless tr......
  • U.S. v. Terzado-Madruga, TERZADO-MADRUG
    • United States
    • United States Courts of Appeals. United States Court of Appeals (11th Circuit)
    • April 2, 1990
    ...prejudice, substantially outweighing probative value, which permits exclusion of relevant matter under Rule 403." United States v. McRae, 593 F.2d 700, 707 (5th Cir.), cert. denied 444 U.S. 862, 100 S.Ct. 128, 62 L.Ed.2d 83 (1979) (emphasis in original). We conclude that the admittedly prej......
  • Request a trial to view additional results
2 books & journal articles
  • Witnessing the witness: the case for exclusion of eyewitness expert testimony.
    • United States
    • Notre Dame Law Review Vol. 86 No. 2, March 2011
    • March 1, 2011
    ...enumerated in Rule 403, the general rule is that the balance should be struck in favor of admission."); United States v. McRae, 593 F.2d 700, 707 (5th Cir. 1979) ("Unless trials are to be conducted on scenarios, on unreal facts tailored and sanitized for the occasion, the application of Rul......
  • Violent Videos: Criminal Defense in a Digital Age
    • United States
    • Georgia State University College of Law Georgia State Law Reviews No. 37-2, December 2020
    • Invalid date
    ...Richardson & Goff, supra note 20, at 2628.387. Id. at 2636.388. Banchik, supra note 334, at 1166. 389. See, e.g., United States v. McRae, 593 F.2d 700, 707 (5th Cir. 1979) (finding no error to admit photographs of a murder victim that the court characterized as "gross, distasteful and distu......

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT