U.S. v. Scout, 96-3307

• Decision Date: 01 May 1997
• Docket Number: No. 96-3307,96-3307
• Citation: 112 F.3d 955
• Parties: UNITED STATES of America, Appellee, v. David SCOUT, also known as David White Face, Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 955

112 F.3d 955

UNITED STATES of America, Appellee, v. David SCOUT, also known as David White Face, Appellant.

No. 96-3307.

United States Court of Appeals Eighth Circuit.

Submitted Feb. 11, 1997.

Decided May 1, 1997.

Gustav K. Johnson, argued, Rapid City, SD, for appellant.

Robert Aaron Mandel, Assistant U.S. Attorney, argued, Rapid City, SD (Ted L. McBride, on the brief), for appellee.

Before MAGILL, BEAM, and LOKEN, Circuit Judges.

MAGILL, Circuit Judge.

A jury convicted David Scout, who is also known as David White Face, of assaulting a federal officer without a weapon, in violation of 18 U.S.C. § 111(a)(1) (1994). ¹ The district court ² sentenced Scout to fourteen months imprisonment. At trial Scout maintained that he had no memory of the alleged assault because of an alcohol-induced black-out. On appeal, Scout contends that the district court erred in (1) refusing to give a requested jury instruction on self-defense; (2) refusing to allow a psychologist to testify that Scout had a peaceful personality; and (3) refusing to change a jury instruction regarding character evidence. We affirm.

I.

On August 15, 1995, Scout, his brother Manuel Scout, and their friend Anthony Brave Heart gathered at Scout's and Manuel's home in the Evergreen Housing complex on the Pine Ridge Indian Reservation in South Dakota. The group consumed two half-gallons of vodka and a six-pack of malt liquor. Late that evening Scout, Manuel, and Brave Heart left Scout's home to walk to a friend's house nearby.

Tribal law prohibits public and private intoxication on the reservation. See Trial Tr. at 28 (testimony of Paul Rooks, Chief of Police of the Oglala Tribal Public Safety Commission, discussing Resolution 88-12). Oglala Sioux Tribe Public Safety Commission Officers Lloyd Bianas and John Attack Him received information on August 15 that Brave Heart and two others were intoxicated and causing a disturbance in the Evergreen Housing complex. After stopping at the home of Nathan Elk, a police officer who lived in the Evergreen Housing complex, Officers Bianas and Attack Him saw Brave Heart, Manuel, and Scout walking through the housing complex.

Officers Bianas and Attack Him approached Brave Heart, Manuel, and Scout. The three men fled, and the officers pursued and apprehended them. Officer Attack Him testified that he first apprehended Manuel, who was "pretty intoxicated" and struggled against the officer. See Trial Tr. at 41. After placing Manuel in the back of the police car, Officer Attack Him drove the car to find the other suspects.

Officer Attack Him soon found Officer Bianas, who had overtaken Brave Heart and Scout. When Officer Attack Him arrived, Officer Bianas had already subdued Brave Heart by spraying him with mace and handcuffing him. Officer Bianas also had Scout on the ground in an arm-lock. Officer Attack Him placed Brave Heart in the back of the police car and then assisted Officer Bianas in securing Scout.

After the officers placed Scout in the police car, Officer Bianas stated that he had been hurt. Officer Attack Him noticed that Officer Bianas's shirt had been torn and that he had a scrape on his forearm. Upon searching the area, the officers discovered on the ground a seven-inch long utensil described as a fondue fork.

Officer Bianas testified at trial that he apprehended Brave Heart first, after pursuing him for a quarter of a mile. Brave Heart resisted arrest, and swung his fists at Officer Bianas. Officer Bianas maced Brave Heart, forced him to the ground, handcuffed him, and placed him against the hood of a nearby car.

Officer Bianas then looked for Scout. Officer Bianas testified that he found Scout hiding in some weeds, and that

I walked up to [Scout], told him he was under arrest. He just come at me, like, you know, like he was going to jump on me; and when I grabbed his arm, felt like I got a scratch, you know, something scratched me, so I jumped back and maced him and he come at me again.

Trial Tr. at 69. Officer Bianas then forced Scout to the ground. After Scout was handcuffed, Officer Attack Him helped Officer Bianas place Scout in the police car.

Officer Bianas noticed "a sharp pain on the lower left side of the rib cage area," id. at 71, and a scratch on his left wrist. Officer Bianas's uniform shirt was torn and his undershirt was scratched. Officer Bianas and Officer Attack Him discovered the fondue fork in the area where Officer Bianas had apprehended Scout. Officer Bianas sought medical attention for his scratches, but had no serious injuries.

A day after the arrests, Manuel Scout signed a statement describing the events of the previous night. Manuel, Scout's brother, asserted that he had previously seen the fondue fork discovered at the arrest site and that "we have these at our house. Mom uses those to cook, maybe to fry a hot dog.... I don't know what [David] needed it for. We were just going for a walk." Trial Tr. at 120 (question to Manuel Scout, quoting Ex. 9). ³

Although Manuel indicated that Scout's left eye was bleeding and shut as Scout was brought to the police car, Manuel gave no other indication of police abuse in his signed statement. At trial, however, Manuel testified that he saw the officers beat Brave Heart by striking his head against the police car, and that the officers maced Scout and Brave Heart while they were handcuffed in the back of the police car.

Brave Heart signed a statement the day after his arrest asserting that his head had been struck against a police car twice by Officer Attack Him. At trial, Brave Heart testified that Officer Bianas arrested him "and started banging my head off the hood, I would estimate probably three to four times." Trial Tr. at 128. Although Brave Heart stated that he "got a broken nose and I should say two black eyes and a cracked chin," id. at 129, he never received medical treatment, and "let [his injuries] heal on its own." Id. at 134. Brave Heart also testified that he was maced while in the back of the police car, and that he saw Officer Bianas's leg "going up to" Scout's face when Scout was "going down to the ground...." Id. at 129. Both Officers Bianas and Attack Him denied having used unnecessary force.

Scout testified that he had virtually no memory of the arrest because of an alcohol-induced black-out. Scout stated that he "blanked out" while listening to music in his home, see Trial Tr. at 147, and that the next thing that he remembered was that he "was outside walking by Nathan Elk's driveway, I heard someone say, 'the cops.' And then I took off." Id. Scout further testified that he did not learn that Officer Bianas was among the police officers pursuing him until the next day, see id. at 153-54, ⁴ and that he had no memory of his alleged assault on Officer Bianas.

Scout complained of four injuries that he allegedly received during his arrest--including a swollen cheek, a bump on the back of his head, a cut on his forehead, and a shut eye--and testified that he "assumed" that the officers kicked him four times. Id. at 148. Scout sought medical treatment and received drops for his eye. Scout also testified that he had been arrested by Officer Bianas in the past, and that during a previous arrest Officer Bianas had slapped him with the back of his hand twice because Scout asked why he was being arrested. See Trial Tr. at 143.

Scout was indicted on a charge of assaulting a federal officer with a weapon, in violation of 18 U.S.C. § 111(a)(1). Scout attempted to pursue a defense of self-defense at trial. During the trial, Scout's attorney elicited testimony from two community members--both of whom were related to Scout--that Officer Bianas had a reputation for violence. See Trial Tr. at 94 (testimony of Aldeen Mary Steele Yellow Boy); id. at 99 (testimony of Myrna Young Bear). Scout also asserted that he had heard of Officer Bianas beating other prisoners. See id. at 144. The district court did not allow a psychologist who interviewed Scout to testify that Scout had a peaceful personality and would not have started a fight with Officer Bianas.

Scout submitted a proposed jury instruction to the district court which stated:

If a person reasonably believes that force is necessary to protect himself 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. In order to convict the Defendant of any charge, you must find beyond a reasonable doubt that the Defendant was not acting in self[-]defense during the incident in question.

Appellant's Add. at 10. The district court did not issue this instruction to the jury, concluding that the evidence submitted did not support a self-defense instruction.

After a witness expressed her opinion that Officer Bianas had a violent reputation, a jury member sent the district court a note which asked, "Have the witnesses seen Mr. Bianas being violent or only heard reports from others? What is the source of his reputation for violence?" Trial Tr. at 186-87 (quoting note from juror). The district court notified the parties about this note, and Scout submitted a proposed jury instruction to clarify Federal Rule of Evidence 405's limitation of admissible character evidence. The proposed instruction stated:

Generally, evidence of a person's character or a trait of character is not admissible at trial for the purpose of proving action in conformity therewith on a particular occasion. However, evidence of a pertinent trait of character offered by an accused and evidence of a pertinent trait of character of the alleged victim of the crime charged offered by an accused, and evidence by the prosecution to rebut such evidence offered by an accused is admissible at trial for the purpose of proving action in conformity therewith on a particular occasion.

When the accused seeks to offer evidence of character, the proof is limited only to testimony as to reputation or by testimony in the...