U.S. v. Roy

• Decision Date: 04 April 1988
• Docket Number: No. 87-5037,87-5037
• Citation: 843 F.2d 305
• Parties: , 25 Fed. R. Evid. Serv. 375 UNITED STATES of America, Appellee, v. Gordon Wayne ROY, Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 305

843 F.2d 305

100 A.L.R.Fed. 469, 25 Fed. R. Evid. Serv. 375

UNITED STATES of America, Appellee, v. Gordon Wayne ROY, Appellant.

No. 87-5037.

United States Court of Appeals,

Eighth Circuit.

Submitted Dec. 16, 1987.

Decided April 4, 1988.

Peter Thompson, Minneapolis, Minn., for appellant.

Joan N. Ericksen, Asst. U.S. Atty., Minneapolis, Minn., for appellee.

Before JOHN R. GIBSON, BOWMAN and WOLLMAN, Circuit Judges.

JOHN R. GIBSON, Circuit Judge.

Gordon Roy appeals from his conviction of second degree murder. 18 U.S.C.A. Sec. 1111 (West Supp.1987). On appeal, he argues that the district court ¹ erred in permitting a witness to testify to and compare out-of-court statements of Roy's accomplices; in denying instructions Roy requested regarding lesser included offenses; and in admitting evidence of Roy's flight from police and giving a particular instruction on flight as evidence of guilt. The conviction is affirmed.

Roy was convicted for killing Darin White on the Red Lake Indian Reservation; Roy and White were both Indians. The evidence was that Roy become embroiled in a conflict at a party at Anna Thunder Knudtson's house in the early morning hours of August 2, 1986. Not only was he asked to leave, but the other guests hastened his departure by shooting at him. White was one of the guests at the party. Roy drove his car a short distance from the party with his three passengers, Darwin Neadeau, Darwin Stately and Sam Hill, but Neadeau and Roy returned on foot to the vicinity of the party. Roy apparently found Darin White alone and beat White, either with a weapon or his fists. Roy then asked Neadeau to bring the car around, and Roy forced White into the back seat of the car with him. All five men drove to a secluded spot on the Reservation, where Roy took White out of the car and "chopped" his throat with a machete. The testimony differs about the extent to which Neadeau, Stately and Hill then participated in beating White, but at any rate some or all of them hit him with a tire iron, car jack, chain and padlock, and boots until he died.

Roy and Neadeau put White's body in the trunk of the car and drove to another remote spot, where they abandoned the corpse by an oak tree. Police found the body badly decomposed, about two weeks later.

After leaving White's body by the oak tree Roy and his accomplices got back in the car and Roy drove them to North Dakota. En route Roy hit another car, but continued driving until he came to a field, where he parked behind some grain bins. State police officers arrived on the scene to arrest Roy for the hit and run accident, and Roy ran away on foot before they reached his car. After the police apprehended Roy, he asked several times what he was being charged with.

Eventually all three of the accomplices gave statements inculpating Roy. At trial they testified against him. On cross-examination Roy's attorney questioned them about inconsistencies in their stories; opportunities they had had to get together and manufacture a story; and the facts that Stately and Hill had not been prosecuted and that Neadeau had entered a plea bargain in which he agreed to testify against Roy. The clear import of the cross-examination was that the accomplices had manufactured a story falsely blaming Roy for the murder in order to minimize their own punishments.

The prosecutor then called the FBI agent who had investigated the case, Joseph Ryan. Ryan testified about the accomplices' post-arrest statements to him about the killing. Roy did not testify, but he argued through his attorney that he did not participate in the killing, but had merely been present when Stately, Hill and Neadeau killed White. He also presented evidence that Roy was intoxicated at the time of the killing and that Roy's uncle, whom he visited briefly on the way to North Dakota the morning of the murder, did not see any blood on Roy.

Roy was convicted of second degree murder and sentenced to life imprisonment.

The first group of issues arises from the trial testimony of FBI Agent Joseph Ryan. Ryan testified at length about his investigation of the Darin White killing, including his interviews with Neadeau, Hill and Stately. Roy argues that Ryan should not have been allowed to testify about the accomplices' out-of-court statements or his conclusions that their stories were consistent and truthful.

We reject Roy's argument attacking the admission of Ryan's testimony recounting the accomplices' prior consistent statements. Roy argues that the statements were all made after the accomplices had a motive to fabricate a story shifting the blame to Roy. Roy relies on United States v. Bowman, 798 F.2d 333, 338 (8th Cir.1986), cert. denied, --- U.S. ----, 107 S.Ct. 906, 93 L.Ed.2d 856 (1987), in arguing that admission of the accomplices' statements was therefore erroneous. However, the district court's charge to the jury in this case limited the use of Ryan's testimony to rehabilitation of the accomplices' testimony and excluded it as substantive proof. ² Bowman specifically held that prior consistent statements made after the existence of a motive to fabricate are admissible for rehabilitation, though not as substantive evidence. Therefore, there was no error in admitting the prior consistent statements for the limited purpose of rehabilitation. Id. at 338. ³

However, we are deeply troubled by Roy's argument that Ryan's testimony amounted to an impermissible opinion that the accomplices' testimony was consistent and truthful. Roy has complained about numerous excerpts from Ryan's testimony in this regard and we begin by observing that Roy failed to object to several of the statements at trial; ⁴ accordingly, we have reviewed those statements only for plain error and have concluded that none of them had a substantial adverse effect on Roy's rights, amounting to a miscarriage of justice. See United States v. Resnick, 745 F.2d 1179, 1183 (8th Cir.1984). However, two other passages in Ryan's testimony were objected to at trial and they pose greater problems.

First, Ryan was allowed to compare the accomplices' out-of-court statements at some length and to opine that their stories were similar. ⁵ At the end of this line of questioning Ryan stated that based on the similarity of the accomplices' stories, the investigators concluded they were "getting some facts" from the accomplices. Tr. 485-86.

Second, on redirect the prosecutor began asking questions that established Ryan's experience and expertise in investigating multi-defendant criminal cases and determining "whether a story has been manufactured." Tr. 553. She then asked him: "And can you describe a little bit about what you learned and how you applied that learning to this case?" Ryan answered that he looked for consistency of minute detail in the accomplices' stories and that such consistency existed in this case. Tr. 554. He later testified: "It becomes obvious, after a period of years, that if people get together and concoct a story, they'll probably get certain facts right, certain very important facts like who had the weapon, or who went into the bank first, or something like that, but they don't get down to minute details * * *. That type of detail is what we're looking for--inconsistencies." Tr. 555-56.

Roy argues that these passages amount to an opinion by Ryan on the truthfulness of the accomplices' testimony and that Ryan was presented as if he were an expert in determining who is telling the truth in multi-defendant criminal cases. In United States v. Azure, 801 F.2d 336, 339-41 (8th Cir.1986), this court reviewed the law regarding expert testimony on the truthfulness of a witness' testimony. In Azure, we reversed a statutory rape conviction because a pediatrician and expert on child abuse had testified that the alleged victim was believable and that "he could 'see no reason why she would not be telling the truth in this matter....' " Id. at 339. Azure acknowledged that the district court's decision to admit expert testimony will not be reversed absent abuse of discretion, id. at 340, but concluded that permitting expert testimony on the truthfulness of a witness' testimony may be such an abuse because it undermines the jury's role as arbiter of credibility. Id. at 340-41.

This case falls within the reasoning and the rule of Azure. There was testimony that tended to establish Ryan as an expert in getting to the bottom of a criminal case ⁶ and the offending passages of Ryan's testimony intimate that Ryan believed the accomplices' statements were true. Therefore, we are bound by Azure to conclude that admitting Ryan's opinion testimony was an abuse of discretion.

However, there are significant differences between the testimony here and in Azure, which lead us to believe the error was harmless here, though it was reversible in Azure. Id. at 341. In Azure, the pediatrician was "impressively qualified" to opine on the behavior of child sexual abuse victims, which is "a matter ... beyond [the jurors'] common knowledge and ordinary experience." Id. at 340. Under these circumstances, there would be a real danger that the jurors would abandon their own common sense evaluation of credibility in favor of the expert's scientific evaluation. In this case, the foundation laid for Ryan's testimony was not elaborate and there was no evidence of any training or education giving Ryan some great advantage over the jurors in divining truth. Moreover, Ryan testified that his touchstone for truth or falsity was only the common sense notion that if several persons' stories are consistent in minute detail, they are likely to be true. This pedestrian conclusion was not likely to sweep the jurors off their feet. Moreover, Ryan's conclusion that the accomplices' story was truthful and consistent was attacked at length by Roy's attorney on cross-examination of Ryan and of the three witnesses Ryan talked about. Moreover, the prosecutor made no use of the Ryan testimony...