U.S. v. Scafe, 85-2442

• Decision Date: 15 June 1987
• Docket Number: No. 85-2442,85-2442
• Citation: 822 F.2d 928
• Parties: UNITED STATES of America, Plaintiff-Appellant, v. Thomas F. SCAFE, Defendant-Appellee.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 928

822 F.2d 928

UNITED STATES of America, Plaintiff-Appellant, v. Thomas F. SCAFE, Defendant-Appellee.

No. 85-2442.

United States Court of Appeals Tenth Circuit.

June 15, 1987.

Ira R. Kirkendoll, Asst. Federal Public Defender, D. Kan., Kansas City, Kan. (Charles D. Anderson, Federal Public Defender, D. Kan., Kansas City, Kan., was also on the brief), for defendant-appellant.

Richard L. Hathaway, Asst. U.S. Atty., Topeka, Kan. (Benjamin L. Burgess, Jr., U.S. Atty., Topeka, Kan., was also on the brief), for plaintiff-appellee.

Before HOLLOWAY, Chief Judge, and BARRETT and SEYMOUR, Circuit Judges.

HOLLOWAY, Chief Judge.

Defendant-appellant Scafe appeals his conviction and life sentence for murder in the first degree in violation of 18 U.S.C. Sec. 1111(a) (1984 and 1986 Supp.). On appeal, his main contentions are that the trial court erred (1) when it refused to instruct the jury on the lesser included offense of voluntary manslaughter; (2) when the judge denied Scafe's motion to disclose the identity of two confidential Government informants; and (3) when the court permitted the Government to introduce written statements of the defendant, which had not been produced pursuant to Rule 16(a)(1)(A), F.R.Crim.P., and the open file policy adopted by the Government in this case.

I

The factual background

Considering the evidence in the light most favorable to the Government, as we must at this juncture, it tended to show the following:

A conflict arose between defendant Scafe and the murder victim, James D. Bryson, who were both inmates at the United States Penitentiary, Leavenworth, Kansas. The immediate controversy apparently started when Scafe asked Bryson to turn down his radio which was disturbing Scafe, and Bryson took offense. Bryson had been telling inmates that he was having problems with Scafe and was going to have to do something about him. He also had been calling Scafe highly derogatory names, referring to him as a "punk" which had connotations that Scafe was a homosexual or a very weak individual.

The problem escalated and on March 19, 1985, at around 5:30 p.m., Bryson told Scafe he had better check into 63, a protective custody unit within the prison, and that "I am going to kill you." Testimony on this statement was given by defense witness inmate Biggs. III R. 160-161. Scafe took the stand and testified that Bryson had told him the next time he saw him, "he was going to kill me." III R. 248. Scafe said that Bryson's exact words were "If I see you again, white boy, I am going to kill you." III R. 249.

Shortly after Bryson's threat to Scafe, Scafe said that he returned to his cell. Scafe decided that the controversy between him and Bryson would be resolved that night. He packed his personal belongings, anticipating that he would either be dead or placed in the segregation unit in building 63 that night. He then secured his eyeglasses by attaching a rubber band to them, which he placed around his head. Finally he obtained a shank or homemade knife from a hidden cache in the cellblock and awaited Bryson's return. III R. 248-54, 262-67.

Later that evening of March 19, Bryson returned early from his college classes to "D" cellhouse where he and Scafe resided, eight cells apart. Bryson stood talking with another inmate. At approximately 7:30 p.m., Scafe rushed up behind Bryson and stabbed him. Bryson fell and then got up and Scafe pursued him, stabbing Bryson as he ran. After Bryson fell to the ground for the final time, Scafe stabbed him in the chest, leaving the knife there, and then surrendered to the correctional officers nearby. Bryson died shortly thereafter in the prison hospital from exsanguination. Scafe had inflicted twenty stab wounds, seven of which were of a nature to have caused death. The assault took place on the main floor of D cellhouse before several witnesses, including some correctional personnel and inmates.

During Scafe's testimony in his defense he said that Bryson had insulted him on numerous occasions and that on the evening of March 19, Bryson threatened his life. III R. 251. Bryson had said "check in tonight" and "if I see you again, white boy, I am going to kill you." Id. at 248-249. Bryson felt that checking into the protective custody unit 63 was not right because putting yourself into protective custody meant being labeled as an informer and it is "open season on you." Id. at 249.

Scafe testified further that he next saw Bryson at approximately 7:10 p.m. and was surprised because he thought Bryson would be in his college classes until about 8:30 p.m. III R. 253. He assumed that Bryson was looking for him and was waiting to carry out his threat and attempt to kill Scafe. Scafe said that when he went downstairs and confronted Bryson, he was scared to death, that he "was planning to kill him" at that time, that he felt he had no other options, and that this was his only alternative to save his life. Id. at 260-63, 267.

Charles Marts, an inmate, testified for Scafe. He said that on about January 4, 1985 Bryson said to Marts that he had been having trouble with a white man named Tom and that he was going "to have to do something to him ..." III R. 141. Inmate Crabtree also testified that Bryson was very aggressive toward people, that Crabtree himself had an altercation with Bryson, and that the night Bryson was killed, sometime between 5:00 and 6:00 he saw Bryson walk up to Scafe and Bryson told Scafe to get off the yard, check in, and that if he didn't, he would kill Scafe. Id. at 176-77.

Another inmate, Bond, testified that about 5:30 on the evening of March 19, 1985 he was standing on the stairwell and Bryson accosted Scafe and started loud talking in that area. Bond said that Bryson told Scafe if he was not off the compound by 10:00, Bryson would kill Scafe, calling him several derogatory names. III R. 193-94. Inmate George Scalf also testified that Bryson had made a threat on Scafe's life earlier the evening of the homicide. Id. at 205, 207.

The Government offered Ex. 21 (App. 1). This was a letter said to have been written by Scafe outlining the testimony he wanted on the threats and the like from inmate witness Scalf. The Exhibit was admitted over objection.

The Government witness, Dr. Jensen, is a board certified pathologist. He performed an autopsy on Bryson. He identified twenty entry stab wounds and two exit stab wounds. Eight wounds were discussed and all but one of these were of a sufficient nature, especially those that penetrated the heart, to have caused death. II R. 99. He said that Bryson's death was caused by exsanguination from multiple stab wounds to the heart and lungs. Id. at 103.

The trial judge gave instructions on the elements of the first degree murder offense and second degree murder and on the self-defense theory.

After deliberation of about a day and a half, the jury found defendant guilty of first degree murder and he was sentenced to life imprisonment. This appeal followed.

II

Voluntary manslaughter instruction

At a hearing on proposed instructions, the defendant requested that an instruction on the lesser included offense of voluntary manslaughter be given. ¹ See 18 U.S.C Sec. 1112. III R. 292-93. The court denied this request on the basis that there was no evidence of voluntary manslaughter. Id. at 193. The judge did, however, agree to instruct on the lesser included offense of second degree murder. See 18 U.S.C. Sec. 1111(a). Id.

Voluntary manslaughter is a lesser included offense of murder. It is the unlawful killing of a human being without malice upon a sudden quarrel or heat of passion. 18 U.S.C. Sec. 1112(a). Manslaughter differs from first degree murder in that there is no element of "malice aforethought." Malice is negated by the heat of passion. United States v. Lofton, 776 F.2d 918, 920 (10th Cir.1985). Where there is evidence of circumstances exciting in the defendant's mind a sudden passion, either of rage or fear, it can be found that there was a willful and unlawful killing, but at the same time one without malice, and thus manslaughter and not murder. Stevenson v. United States, 162 U.S. 313, 322, 16 S.Ct. 839, 842, 40 L.Ed. 980 (1896). Further, self defense and voluntary manslaughter instructions are not always inconsistent. Id. at 322-23, 16 S.Ct. at 842-43; United States v. Manuel, 706 F.2d 908, 915 (9th Cir.1983); Kinard v. United States, 96 F.2d 522, 526 (D.C.Cir.1938).

A defendant is entitled to jury instructions on any theory of defense finding support in the evidence and the law. Failure to so instruct is reversible error. United States v. Lofton, 776 F.2d at 920. Thus, when a defendant presents evidence supporting a theory of defense, the trial court should refer to that theory and to the testimony bearing on it and submit the issue with an instruction on the applicable law. The jury should be advised of the defendant's position so as to put the issues raised by the theory of defense squarely before it. United States v. Lofton, 776 F.2d at 920.

Defendant contends that the trial court's failure to give a voluntary manslaughter instruction constituted plain error because it relieved the prosecution of its burden to prove every element of the offense beyond a reasonable doubt and left the jury free to convict without proper instruction on the essential element of intent, i.e., that the killing was committed with malice. While it is true that in order to obtain a murder conviction, the prosecution must "prove beyond a reasonable doubt the absence of the heat of passion on sudden provocation when the issue is properly presented in a homicide case," Mullaney v. Wilbur, 421 U.S. 684, 704, 95 S.Ct. 1881, 1892, 44 L.Ed.2d 508 (1975) (emphasis added), we do not find that the issue was properly presented in this case.

Defendant points to his testimony regarding his reaction to the remarks made to him by the victim which implied that he was a homosexual or a weak individual, the threats made against...