U.S. v. Milk
| Decision Date | 12 May 2006 |
| Docket Number | No. 05-3183.,05-3183. |
| Citation | 447 F.3d 593 |
| Parties | UNITED STATES of America, Appellee, v. Wicahpe George MILK, Appellant. |
| Court | U.S. Court of Appeals — Eighth Circuit |
Monica D. Colbath, Asst. Federal Public Defender, argued, Rapid City, South Dakota, for appellant.
Mark E. Salter, Asst. U.S. Atty., argued, Sioux Falls, South Dakota (Robert A. Mandel, Asst. U.S. Atty., Rapid City, South Dakota, on the brief), for appellee.
Before COLLOTON, HEANEY, and GRUENDER, Circuit Judges.
This case involves a homicide that occurred on the Pine Ridge Indian Reservation. Following a jury trial, Wicahpe George Milk (Wicahpe) was convicted of second-degree murder for killing Arlen Bissonette. The district court1 sentenced Wicahpe to 135 months in prison, to be followed by three years of supervised release. On appeal, Wicahpe challenges the sufficiency of the evidence, and further contends that he is entitled to a new trial on account of evidentiary errors and prosecutorial misconduct. Lastly, he argues that his sentence is unreasonable. We affirm.
We recount the evidence in the light most favorable to the jury verdict, as we are required to do. In the afternoon of October 15, 2004, Wicahpe, Bissonette, and several others were at Wicahpe's residence drinking and socializing. At some point, Curtis Milk, Wicahpe's father, arrived with Petan Milk, Wicahpe's brother. Curtis, who was intoxicated, tried to start a fight with Bissonette, but was unsuccessful. Instead, many of the revelers moved the party away from Curtis, reconvening at Larry Bettelyoun, Sr.'s house. Shortly thereafter, Curtis also arrived at the house. Curtis became hostile again, causing a number of people, including Bissonette, to leave and return to their prior venue. Curtis and Wicahpe remained at Bettelyoun, Sr.'s house.
After some time passed, Wicahpe returned to his residence. He was visibly upset, and complained that his father was treating him badly while he was at Bettelyoun, Sr.'s. According to Larry Bettelyoun, Jr., Wicahpe's face had red marks on it and looked as if he had been assaulted. Wicahpe told Bissonette that Curtis still wanted to fight Bissonette, and Wicahpe encouraged Bissonette to do so.
Bissonette then left with Jeff Curry to confront Curtis. Bissonette entered Bettelyoun, Sr.'s residence and attacked Curtis. Bissonette, a muscular young man many years Curtis's junior, beat Curtis badly, leaving him bloody and barely conscious. The wounds sustained by Curtis were consistent with blows from brass knuckles carried by Bissonette.
Bissonette then returned to Wicahpe's residence, and told Wicahpe that he had "handled that for him." (Trial Tr. Vol. I at 89.) This prompted Wicahpe and Petan to go back to Bettelyoun, Sr.'s house. They entered that home to see their father lying in a pool of blood on the floor, gurgling and laboring for breath. When Wicahpe saw this, he told his brother Petan that they should "get" those responsible, presumably referring to Bissonette. (Id. at 51.) The two then took Bettelyoun, Sr.'s car back to Wicahpe's residence.
Wicahpe then arrived at the house, driving so quickly and recklessly that he rammed the porch of the house and nearly hit a person who was standing outside. He went inside and saw Bissonette still there. Wicahpe, upset, began questioning Bissonette about what had happened to his father. Wicahpe picked up a long knife from the counter and broke the telephone. Wicahpe and Bissonette exchanged words for a short time before Petan entered, holding what was described as some type of stick or shaft. At that point, Wicahpe, Petan, Bissonette, and Curry began to fight. In the struggle, both Bissonette and Curry were stabbed by Wicahpe and struck by Petan. Bissonette's injuries included two stab wounds, which punctured his lung and his kidney. Bissonette also sustained significant head trauma from Petan's attack. He died later that night. An autopsy attributed the death to the stab wounds with the possibility that the head trauma was a contributing factor.
Wicahpe and Petan were jointly charged by indictment with committing second-degree murder in Indian country and aiding and abetting each other to do the same, in violation of 18 U.S.C. §§ 1111, 1153, and 2. Both went to trial. At trial, Wicahpe's primary defense was that of self-defense. His theory was that Bissonette was known to be very violent when he was drinking, and when it appeared that Bissonette was becoming combative, Wicahpe felt it necessary to stab him to protect himself. In support of this theory, Wicahpe presented evidence that Bissonette had attacked someone in a vehicle earlier in the day by opening the vehicle's door and then punching and kicking the occupant. Testimony also established that Bissonette had chased another person, Ben Long Wolf, while trying to fight him. Wicahpe's evidence also included the fact that Bissonette had brutally attacked his father moments before the stabbing, leaving Curtis with severe and serious injuries that appeared to be the result of a brass knuckle assault.
In further support of his self-defense theory, Wicahpe sought to introduce evidence of another assault Bissonette had perpetrated years earlier. According to Wicahpe, he, Bissonette, and Mike Ten Fingers had been playing a card game in 1999. When Bissonette lost, he became upset and stabbed Ten Fingers several times with an instrument resembling an ice pick. The district court did not admit this evidence, however, ruling that its probative value was outweighed by its prejudicial effect. In reaching this conclusion, the court reasoned that this assault happened roughly five years before the stabbing, and that in the meantime, Bissonette and Wicahpe had remained close friends, which suggested Wicahpe was not scared of Bissonette. Moreover, the court held that admitting this evidence might lead to a collateral mini-trial, confusing the jury.
Following a two-day trial, Wicahpe was convicted of second-degree murder. Petan was acquitted of all charges. At sentencing, both parties agreed on the guidelines range of 135 to 168 months. Wicahpe moved for a downward departure based on victim conduct. The government informally asked for consideration of an upward departure based on the use of a weapon, and because the guidelines had increased the second-degree murder penalty subsequent to this incident. After considering those motions, the presentence report, and statements made at the sentencing hearing, the district court determined that a guidelines sentence was appropriate, based on the factors enumerated in 18 U.S.C. § 3553(a). Wicahpe was sentenced to 135 months in prison, to be followed by three years of supervised release. This appeal followed.
On appeal, Wicahpe contends that he was entitled to a judgment of acquittal on all charges because he acted in self-defense. In the alternative, he suggests that the evidence established only that he was guilty of some form of manslaughter, not second-degree murder. Next, Wicahpe argues that it was reversible error to exclude the evidence that Bissonette had violently assaulted Ten Fingers five years earlier because that evidence was essential to Wicahpe's state of mind. Wicahpe also argues that the prosecutor engaged in serious misconduct by knowingly presenting perjured testimony and by making improper remarks in his closing argument and rebuttal. Lastly, Wicahpe believes that the unique circumstances of his case make a guidelines sentence unreasonable.
In considering whether a motion for judgment of acquittal was properly denied, we view the evidence in the light most favorable to the guilty verdict, granting all reasonable inferences that are supported by that evidence. United States v. Cline, 570 F.2d 731, 733 (8th Cir.1978). Although a federal defendant bears the burden of production on the issue of self-defense, once that burden is met, the government must prove beyond a reasonable doubt that the defendant did not act in self-defense. United States v. Scout, 112 F.3d 955, 960 (8th Cir.1997) (quoting United States v. Alvarez, 755 F.2d 830, 842 n. 12 (11th Cir.1985)); see also United States v. Deon, 656 F.2d 354, 355 (8th Cir.1981) ().
Wicahpe agrees that the district court correctly instructed the jury on the issue of self-defense. That instruction noted that it was the government's burden to prove beyond a reasonable doubt that Wicahpe was not acting in self-defense. The court further instructed the jury that self-defense was defined as follows:
If a person reasonably believes that force is necessary to protect himself or another person from what he reasonably believes to be unlawful physical harm about to be inflicted by another and uses such force, then he acted in self defense or defense of another person.
However, self defense which involves using force likely to cause death or great bodily harm is justified only if the person reasonably believes that such force is necessary to protect himself or another person from what he reasonably believes to be a substantial risk of death or great bodily harm.
Wicahpe's theory at trial was that Bissonette was volatile and violent when drinking, and that he was forced to arm himself with a knife and stab Bissonette to save himself. Having reviewed the record, we find substantial evidence presented to the jury that tended to negate the idea that Wicahpe acted in self-defense. For instance, before leaving his wounded father Wicahpe told his brother Petan that they should "get" Bissonette. (Trial Tr. Vol. I at 51.) The two then commandeered another person's car to return to Wicahpe's house, driving so erratically that they hit the porch of the house before...
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