U.S. v. Seschillie

Decision Date21 November 2002
Docket NumberNo. 01-10147.,01-10147.
Citation310 F.3d 1208
PartiesUNITED STATES of America, Plaintiff-Appellee, v. Emerson SESCHILLIE, Defendant-Appellant.
CourtU.S. Court of Appeals — Ninth Circuit

Karen M. Wilkinson, Assistant Federal Public Defender, District of Arizona, Phoenix, AZ, for the defendant-appellant.

Joseph C. Welty, Assistant United States Attorney, District of Arizona, Phoenix, AZ, for the plaintiff-appellee.

Appeal from the United States District Court for the District of Arizona; Earl H. Carroll, District Judge, Presiding. D.C. No. CR-00-00943-EHC.

Before: SNEED, HUG and BERZON, Circuit Judges.

BERZON, Circuit Judge.

One evening Emerson Seschillie fired shots at four people, including himself, at a bead stand on the Navajo Reservation. At his jury trial, Seschillie's sole defense with regard to all the shootings was that he did not intend to pull the trigger of his .357 revolver. Rather, Seschillie argued, each time the gun was fired he and someone else were struggling for control of the gun, causing him to accidentally fire it. We must decide whether the jury conviction should be set aside because (1) the trial court prohibited Seschillie's expert witness from testifying about the possibility that the gun was accidentally discharged or (2) because the trial court ordered from the courtroom the expert witness Seschillie called to testify to the scientific plausibility of this version of events. We conclude that the conviction should stand.

I. BACKGROUND

Late in the afternoon of September 22, 1999, Bernita Jensen (for clarity "Bernita") and her older sister Rosie Jensen ("Rosie") stopped by the home of Bernita's off-again, on-again boyfriend Seschillie. Seschillie was drunk when they arrived. After a brief exchange with Seschillie, Bernita and Rosie drove off.

Later in the evening, Bernita and Rosie drove to Bernita's roadside bead stand, where they joined Bernita's employee, Gloria Webster. Soon after Bernita and Rosie entered the bead stand, Seschillie drove up, entered the stand and bickered with Bernita. Finally, Bernita said, "Emerson, you are getting to be too mean, you are a little mean. And I don't want to see you anymore."

After this exchange, Bernita watched Seschillie leave the bead stand. He returned, however, and yelled, "You don't love me anymore." Bernita turned around to see Seschillie pointing a gun at her head. She grabbed the barrel of the gun and pushed it down until Seschillie stiffened. The gun went off, wounding Bernita. Bernita then managed to push Seschillie's arm so that the gun pointed up.

At this point, Bernita fled. Rosie and Webster ran to Seschillie. Webster grabbed the gun with one hand and Seschillie's wrist with the other; Rosie also grabbed Seschillie's wrist. Seschillie continued to hold onto the gun. The gun then went off once, firing a bullet into Rosie's leg, and then went off once more, striking Seschillie in the leg.

No longer a part of the struggle, the wounded Rosie watched as Webster and Seschillie continued to fight over the gun. Webster and Seschillie fell onto the couch. Webster was on her back and Seschillie was on top of her with the gun pointed at her head. As Webster tried to point the gun away from her face, the gun went off yet again, grazing the side of Webster's head.

Seschillie then left the bead stand. Rosie and Webster heard another shot and then glass breaking. Seschillie thereupon returned, threatened the two women, and asked about Bernita's whereabouts. Seschillie remained in the bead stand until, about an hour later, the police arrived and arrested him. Seschillie was taken to the hospital, where it was determined that he had a blood alcohol level of 0.27.

At trial, Seschillie's defense was that the gun accidentally discharged each time it fired. To bolster this assertion, Seschillie planned to have his only witness (Seschillie did not testify), criminologist Ray Gieszl, testify about the possibility of accidental discharge when people are struggling over the possession of a gun. In testimony outside the presence of the jury, Gieszl described several scenarios that can lead to an accidental discharge, including: (1) balance disturbance; (2) startle response; (3) off-hand use ("sympathetic response"); and (4) contested control.1 Gieszl's testimony outside the presence of the jury also indicated that each time Seschillie fired the gun, it was possible that the firing was an accident, because more than one person had a hand on the gun each time.

Following Gieszl's testimony outside the presence of the jury, the district court held that Gieszl could at trial testify generally about the accidental discharge theories but could not render an opinion as to whether the shootings in this case were accidental, nor could he identify facts in the witnesses' testimony that were consistent with accidental discharge. At trial, Gieszl testified generally regarding: (1) balance disturbance; (2) startle response; and (3) off-hand use. He also explained that each of these three scenarios could be triggered when two or more people fight over control of a gun.

During the trial, the government did not object to Gieszl's presence in the courtroom. The district court, however, excluded Gieszl from the courtroom.

The jury found Seschillie guilty of nine counts stemming from these events, including attempted murder. Seschillie appeals.

II. ANALYSIS

Seschillie argues that the district court erred both in refusing to let Gieszl opine as to whether the shootings in this case were accidental and by excluding Gieszl from the courtroom when the victims testified regarding the details of the various struggles over the gun. We do not agree with either contention.

A. Exclusion of Expert Opinion

Although the district court allowed Gieszl to testify generally about the accidental discharge theories, it did not allow Gieszl to offer an opinion concerning whether the four shootings at issue in this case were accidental or to comment on the particular facts of the case. Seschillie urges that because an expert may testify regarding "an ultimate issue to be decided by the trier of fact," Fed. Rule Evid. 704(a), the district court should have permitted all of Gieszl's testimony, including his opinion on the ultimate issue in the case: whether the shootings were, in fact, accidental. We review the district court's determination for an abuse of discretion. United States v. Ortland, 109 F.3d 539, 544 (9th Cir.1997).

In some circumstances, to be sure, an expert may render an opinion on an "ultimate issue." See generally Fed.R.Evid. 704. We need not decide whether proffering such an opinion would have been proper here. The district court excluded the contested portion of Gieszl's testimony not only on the ultimate issue theory but also on the alternate rationale that the subject did not require expert illumination. The district court did not abuse its discretion in so ruling.2

Whether or not expert testimony is appropriate in a particular circumstance is governed by Fed. Rule Evid. 702:

If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise, if (1) the testimony is based upon sufficient facts or data, (2) the testimony is the product of reliable principles and methods, and (3) the witness has applied the principles and methods reliably to the facts of the case.

(Emphasis added).

The district court concluded that the jury could determine, as a matter of "common sense," whether the shootings as described by the victims were accidental according to Gieszl's theories, and would not be assisted in that determination by any specialized knowledge. "A district court does not abuse its discretion when it refuses expert testimony where the subject does not need expert `illumination' and the proponent is otherwise able to elicit testimony about the subject." United States v. Ortland, 109 F.3d 539, 545 (9th Cir.1997). That someone struggling over a gun could experience some of the factors Gieszl identified as causing accidental fire, such as a loss of balance, a surprised reaction, or a need to use his other hand is a matter which anyone could figure out for herself.

B. Sequestration of Expert

Seschillie also argues that the district court erred in excluding Gieszl from the courtroom during trial and that Seschillie was prejudiced thereby. Although we conclude that the district court abused its discretion in excluding Gieszl, the error was harmless.

1) The District Court Abused Its Discretion in Excluding Gieszl

Although the government did not object to Gieszl's presence in the courtroom during the victims' testimony, the district court, acting sua sponte, ordered Gieszl from the courtroom shortly after the trial commenced. Federal Rule of Evidence 615 ("Rule 615") governs the exclusion of witnesses from the courtroom:

At the request of a party the court shall order witnesses excluded so that they cannot hear the testimony of other witnesses, and it may make the order of its own motion. This rule does not authorize exclusion of (1) a party who is a natural person, or (2) an officer or employee of a party which is not a natural person designated as its representative by its attorney, or (3) a person whose presence is shown by a party to be essential to the presentation of the party's cause, or (4) a person authorized by statute to be present.

"The purpose of this rule is to prevent witnesses from `tailoring' their testimony to that of earlier witnesses." United States v. Ell, 718 F.2d 291, 293 (9th Cir. 1983).

Seschillie argues that Gieszl's presence was "essential to the presentation of [his] cause" and that Gieszl therefore fell within the third exception to Rule...

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