U.S. v. Powell

• Decision Date: 21 September 2000
• Docket Number: No. 99-1145,99-1145
• Citation: 226 F.3d 1181
• Parties: (10th Cir. 2000) UNITED STATES OF AMERICA, Plaintiff-Appellee, v. BENTLEY SCOTT POWELL, Defendant-Appellant
• Court: U.S. Court of Appeals — Tenth Circuit

Page 1181

226 F.3d 1181 (10th Cir. 2000)

UNITED STATES OF AMERICA, Plaintiff-Appellee, v. BENTLEY SCOTT POWELL, Defendant-Appellant.

No. 99-1145

UNITED STATES COURT OF APPEALS TENTH CIRCUIT

September 21, 2000

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO (D.C. No. 98-CR-218-D)

[Copyrighted Material Omitted]

[Copyrighted Material Omitted] Sean Connelly, United States Department of Justice,Denver, Colorado (Thomas L. Strickland, United States Attorney, and Tim Neff, Assistant United States Attorney, with him on the brief) for Plaintiff-Appellee.

Charles S. Szekely, Assistant Federal Public Defender, Denver, Colorado (Michael G. Katz, Federal Public Defender, with him on the brief) for Defendant-Appellant.

Before TACHA, HOLLOWAY, and BRORBY, Circuit Judges.

HOLLOWAY, Circuit Judge.

This is a timely direct appeal from the defendant/appellant's conviction for kidnapping for sexual gratification, contact, exploitation, and assault in violation of 18 U.S.C. § 1201. Because the defendant's prior criminal history made him a career offender under the federal sentencing guidelines, the district court sentenced him to life imprisonment. We have jurisdiction under 28 U.S.C. § 1291.¹

I. THE FACTUAL BACKGROUND

Defendant/Appellant Bentley Scott Powell was a guest at the Colorado Springs, Colorado home of Lanita Adamic, her boyfriend Linn Greschke, and her thirteen year old daughter, referred to herein as Jane Doe. On May 6, 1998, Lanita Adamic, because her car had been stolen, asked Powell to accompany Jane on an errand to the Circle K, a local convenience store, where she was to purchase toilet paper and then deliver it to a neighbor.

However, after the purchase and delivery were completed, Powell did not drive Jane home; instead, he took her on a multi-day, multi-state sojourn during which time, according to some testimony elicited at trial, Powell subjected Jane to repeated sexual assaults.

Jane testified at trial that after the delivery was completed, Powell told her that he had seen John Greschke (son of Lanita Adamic's boyfriend) driving her mother's stolen car and that they should follow him if they wanted to recover the vehicle. Some testimony at trial suggests that this story was a fabrication; Deputy Sheriff Fontenot of Ville Platte, Louisiana testified that Lanita Adamic's car was recovered two miles south of Mamou, Louisiana on May 7, and that the car had been there since the previous evening. 6 R. at 681.

Rather than search for Lanita Adamic's car, however, Jane testified that the defendant drove her to the Cheyenne Mountain area near Colorado Springs, Colorado. See 4 R. at 336-37. Jane testified that while at Cheyenne Mountain, Powell provided her with marijuana which they smoked together. After smoking a "baggie" of marijuana, Powell offered Jane a beer, and when she declined, drank it himself. After approximately half an hour, Powell drove them down a road until they stopped. At that point, Powell asked her to take off her shirt. Jane testified that when she refused, he ordered her to do so, and upon her continued refusal, Powell produced a metal bar, hit it several times against the seat and again repeated his demand that she remove her shirt. Jane testified that, frightened, she complied, removing her shirt and bra, whereupon Powell proceeded to fondle her for the next fifteen minutes. Id. at 357-58.

According to Jane's testimony, Powell then drove to the side of a tunnel where he compelled her to touch and perform an oral sexual act on his private part, causing Jane to vomit. See id. at 358-62. Powell subsequently attempted to force Jane to submit to anal sex. According to Jane's testimony, over the next two days, during which time the two entered New Mexico and possibly Texas, Powell subjected her to additional sexual assaults. Jane Doe testified that she remembered seeing a "welcome to Texas" sign and then went to sleep. 4 R. at 487. She also testified that Powell took some car jacks to a pawnshop in Las Vegas, New Mexico. Id. at 392. The only cities Jane could identify as being in were Albuquerque, New Mexico and Las Vegas, New Mexico, according to her testimony. Id. at 495. Ultimately, on the night of May 9, 1998, Powell drove Jane back to the Circle K convenience store in Colorado Springs, where Powell was arrested.

Defendant Powell was indicted and charged with kidnapping in violation of 18 U.S.C. § 1201 which provides in pertinent part:

(a) Whoever unlawfully seizes, confines, inveigles, decoys, kidnaps, abducts, or carries away and holds for ransom or reward or otherwise any person, except in the case of a minor by the parent thereof, when

(1) the person is willfully transported in interstate or foreign commerce . . . shall be punished by imprisonment for any term of years or for life and, if the death of any person results, shall be punished by death or life imprisonment.

The indictment charged that:

Beginning on or about May 6, 1998, and continuing through and including May 8, 1998, in the State and District of Colorado, the defendant, Bentley Scott Powell, did unlawfully and willfully seize, confine, inveigle, decoy, kidnap, abduct, and carry away and hold, Jane Doe, a child under the age of eighteen years, and Bentley Scott Powell did willfully transport Jane Doe in interstate commerce from the State of Colorado to the State of New Mexico for reward or otherwise, namely: for sexual gratification, contact, exploitation and assault.

The defendant did not testify at trial. The defense did call as witnesses, among others, Jane Doe's step-mother, a Denver social services caseworker, and expert witnesses who testified to Jane Doe's lack of credibility and in support of the defense's theory that Jane Doe consented to interstate travel with the defendant. On appeal, the defendant does not challenge the sufficiency of the evidence against him.

The jury found Powell guilty and he appeals his conviction on that verdict. The defendant presents essentially four claims of error: (1) that the trial judge's denial of two motions to exclude prospective jurors for cause during voir dire deprived the defendant of his right to a fair trial by impartial jurors; (2) that the judge erred by failing to reiterate the prosecution's need to meet its burden of proof on all the elements of the offense, and by failing to provide the jury with a specific unanimity instruction, when he charged the jury, sua sponte, that although one element of the indictment read in the conjunctive, that element could be proved by the Government in the disjunctive; (3) that the trial judge's exclusion, under Federal Rules of Evidence 412 and 403, of evidence proffered by the defendant concerning the complaining witness's past sexual behavior violated defendant's rights under the Fifth and Sixth Amendments; and (4) that the cumulative effect of these errors deprived the defendant of his Fifth Amendment right to a fair trial. We address each argument in turn.

II

THE JURORS

A.

During voir dire, defendant moved to exclude two prospective jurors Gail Ward and Charlene Onken for cause, arguing that they would not be able to serve with impartiality. The trial judge denied both motions. The defendant used his final peremptory challenge to excuse Ms. Ward. Consequently, he had no remaining peremptory challenges with which to excuse Ms. Onken, who sat on the jury. Defendant now argues on appeal that the trial judge's decision to deny these two for-cause challenges to prospective jurors violated his Sixth Amendment right to trial by an impartial jury and his Fifth Amendment right to due process. See Appellant's Opening Brief, at 23. Defendant also argues in his brief that the trial judge's failure to grant his for-cause challenge against Ward forced him to use his final remaining peremptory challenge, thereby depriving him of a due process right of later use of that peremptory challenge.

However, as defendant's counsel recognized at oral argument in connection with his challenge to juror Ward, the Supreme Court's recent opinion in United States v. Martinez-Salazar, 120 S. Ct. 774 (2000), precludes his reliance on the Ninth Circuit's Martinez-Salazar holding. Martinez-Salazar, 120 S. Ct. at 777, reversed the Ninth Circuit and held:

We reject the Government's contention that under federal law, a defendant is obliged to use a peremptory challenge to cure the judge's error [in not excusing a biased juror]. We hold, however, that if the defendant elects to cure such an error by exercising a peremptory challenge and is subsequently convicted by a jury on which no biased juror sat, he has not been deprived of any rule-based or constitutional right.

Under this holding, there was no error as to Ward. She was excused by a peremptory challenge and did not sit on the jury. Here defendant's rights as to peremptory challenges and to a fair trial were not infringed in light of the Martinez-Salazar holding.

B.

Defendant's second challenge concerns juror Charlene Onken. Onken disclosed during voir dire that "[m]y daughter was raped at college at the age of 18." 3 R. at 238-39. The trial judge then inquired: "The fact that your daughter was raped at age 18 is that going to make it difficult for you to be fair to either side in this case?" Onken replied: "No. I can be fair." Id. at 239.

During supplemental voir dire by counsel for the defendant, Onken was called to the bench and was asked by the trial judge to explain further the circumstances of her daughter's rape. Onken related that her daughter had been "coming home from a party, and she was with an acquaintance, and she asked to go in and call a friend, and when she got in the house, [her acquaintance] forced himself on her, and she couldn't get away from him. And it was, you know, just very traumatic for her . . . ." Onken then explained that her daughter never filed charges or told anyone other than her. Id. at 240.

Counsel for defendant then asked if ...