U.S. v. Sides, No. 90-5085

CourtUnited States Courts of Appeals. United States Court of Appeals (10th Circuit)
Writing for the CourtBefore BALDOCK and BRORBY; BRORBY
Citation944 F.2d 1554
Parties34 Fed. R. Evid. Serv. 533 UNITED STATES of America, Plaintiff-Appellee, v. Eugene Mervin SIDES, Defendant-Appellant.
Docket NumberNo. 90-5085
Decision Date24 September 1991

Page 1554

944 F.2d 1554
34 Fed. R. Evid. Serv. 533
UNITED STATES of America, Plaintiff-Appellee,
v.
Eugene Mervin SIDES, Defendant-Appellant.
No. 90-5085.
United States Court of Appeals,
Tenth Circuit.
Sept. 24, 1991.

Page 1556

Susan W. Pennington (Tony M. Graham, U.S. Atty., with her on the brief), Asst. U.S. Atty., Tulsa, Okl., for plaintiff-appellee.

Edward Y. Crandall, Oklahoma City, Okl., for defendant-appellant.

Before BALDOCK and BRORBY, Circuit Judges, and FINESILVER, * Chief District Judge.

BRORBY, Circuit Judge.

Defendant-Appellant Eugene Mervin Sides ("Sides" or "Appellant") appeals his conviction on two counts of first degree murder. Appellant was convicted after a jury trial and sentenced to two concurrent life sentences by the United States District Court for the Northern District of Oklahoma.

Sides was convicted of murdering Buck and Maude Cheshewalla, an elderly Osage Indian couple, on allotted Indian land, under a federal indictment charging violation of 18 U.S.C. §§ 1111, 2, and 1153. The victims were killed in their home during the course of an armed robbery perpetrated by Sides and Billy Gene Harris. 1 Sides testified in his own defense and admitted active participation in the armed robbery.

Sides described his participation in the robbery to the arresting officer and later, to the jury. Sides testified that he and Harris each had a handgun, and that each wore yellow surgical gloves. Sides admitted to robbing Buck Cheshewalla at gunpoint. Sides admitted that he bound Cheshewalla's hands behind his back with duct tape. He explained how he led Cheshewalla inside the house, and blindfolded the man and his wife with clothes and duct tape. Sides also admitted to cutting the wires on the Cheshewallas' telephone.

However, Sides claimed he was outside the house, loading stolen property into a truck when Harris killed the Cheshewallas. Sides testified that he was loading the truck when he heard a single gunshot. He said he then went back into the house and found Harris standing over Buck Cheshewalla. Sides said he continued collecting loot, went back outside to the truck, and

Page 1557

then heard two more shots. Sides testified he heard a fourth shot as he returned to the house. He testified that he did not shoot anybody.

Two different handguns were used to kill the Cheshewallas. Maude Cheshewalla was killed by two .22 caliber gunshot wounds to the head. Buck Cheshewalla was killed by two gunshot wounds to the head; one from a .22 caliber bullet, the second probably from a .38 caliber bullet. Sides testified that Harris had probably used different guns because one of the guns could be traced back to Harris.

The jury found Sides guilty of two counts of first degree murder. The jury indicated, in response to a Special Interrogatory, that it found Sides guilty of first degree murder of Buck Cheshewalla, under Count 1 of the indictment, because the murder was committed in the course of a robbery. The jury also indicated it found Sides guilty of first degree murder of Maude Cheshewalla, under Count 2 of the indictment, because the murder was both premeditated and committed in the course of a robbery.

Sides appeals, claiming there was insufficient evidence of malice aforethought, premeditation, and aiding and abetting; raising two evidentiary objections; and asserting plain error in the district court's failure to give an unrequested jury instruction. We affirm.

Insufficient Evidence

Appellant argues "the government did not meet its burden of proof as to the element of 'malice aforethought'; and consequently, the jury's verdict based upon felony/murder or aiding and abetting must be reversed as to both counts 1 and 2." Appellant also argues there is insufficient evidence of premeditation as to Count 2, and aiding and abetting as to both counts. We disagree.

A single test applies in reviewing the sufficiency of the evidence in criminal cases. "The evidence--both direct and circumstantial, together with the reasonable inferences to be drawn therefrom--is sufficient if, when taken in the light most favorable to the government, a reasonable jury could find the defendant guilty beyond a reasonable doubt." United States v. Hooks, 780 F.2d 1526, 1531 (10th Cir.), cert. denied, 475 U.S. 1128, 106 S.Ct. 1657, 90 L.Ed.2d 199 (1986). See also United States v. McKinnell, 888 F.2d 669, 673 (10th Cir.1989). A jury verdict that is supported by substantial evidence cannot be set aside. United States v. Shelton, 736 F.2d 1397, 1402 (10th Cir.), cert. denied, 469 U.S. 857, 105 S.Ct. 185, 83 L.Ed.2d 119 (1984).

Under the federal murder statute, murder is the "unlawful killing of a human being with malice aforethought." 18 U.S.C. § 1111(a). 2 First degree murder is defined as including any murder which is either premeditated or committed in the perpetration of any of the listed felonies, which include robbery. For the purposes of this case, first degree murder thus requires proof of: either a premeditated, malicious, and unlawful killing of a human being, or a malicious and unlawful killing of a human being committed in the perpetration of a robbery.

As noted, the jury specified that the first degree murder of Maude Cheshewalla was both premeditated and committed in the perpetration of a robbery. The jury also specified that the first degree murder of Buck Cheshewalla was committed in the perpetration of a robbery. 3 Because Sides

Page 1558

admitted robbing the victims, who were concededly killed unlawfully, only the element of malice was at issue. We will therefore affirm both first degree murder convictions if the record contains sufficient evidence to enable a reasonable jury to find malice beyond a reasonable doubt. Hooks, 780 F.2d at 1531.

Under the cases,

[m]alice does not require a subjective intent to kill, but may be established by evidence of conduct which is a "reckless and wanton and a gross deviation from a reasonable standard of care, of such a nature that a jury is warranted in inferring that defendant was aware of a serious risk of death or serious bodily harm."

United States v. Shaw, 701 F.2d 367, 392 n. 20 (5th Cir.1983) (quoting United States v. Black Elk, 579 F.2d 49, 51 (8th Cir.1978)), cert. denied, 465 U.S. 1067, 104 S.Ct. 1419, 79 L.Ed.2d 744 (1984).

The evidence presented to the jury in this case unequivocally establishes the malicious nature of Appellant's conduct. The FBI agent who arrested Sides, advised him of his rights, and took his signed statement testified Sides told him that "while discussing the robbery plan [with Harris] while driving [to the Cheshewalla's house] Harris had stated that 'If these people see me we're going to have to waste them.' " Sides himself testified that as the two drove to the Cheshewalla's house, Harris "made the statement that if either one of them seen [sic] him he would have to kill them." Despite this knowledge of his accomplice's plans, Sides continued to actively participate in the robbery.

Sides further testified on cross-examination that he thought the victims recognized Harris:

Yes, they were both blindfolded, but Mr. Cheshewalla, there was the possibility that he might have recognized Mr. Harris down at--by the truck, and I know Mrs. Cheshewalla recognized him, I think at one time in the doorway, when he was in the doorway.

Sides testified that even after Buck Cheshewalla was shot in the head, he continued to collect loot and carry it outside to the truck.

Sides admitted participating in an armed robbery even though he knew both victims would be killed if they happened to see his accomplice. He continued to rob the victims even though he believed they recognized his accomplice. Then, even after the killing began, he did not withdraw, but continued with the robbery. This evidence conclusively establishes that Sides was aware of a serious risk of death attending his conduct--that he acted, in other words, with malice aforethought. Shaw, 701 F.2d at 392 n. 20. In this respect, he was properly convicted of two first degree murders under 18 U.S.C. § 1111(a).

The jury also based its guilty verdict upon Sides's premeditated first degree murder of Maude Cheshewalla. We have considered Appellant's argument concerning the sufficiency of the evidence to show premeditation and find it to be entirely without merit. Sides testified that Buck Cheshewalla was shot first. The evidence suggested that Mr. Cheshewalla was shot during a struggle, perhaps without premeditation. However, no similar evidence explains the Maude Cheshewalla killing. According to Sides, she sat passively, crying and crossing herself moments before her death. Sides also testified he believed Maude Cheshewalla recognized Harris. Given the sequence of the killings, and Sides's knowledge that Harris intended to kill both victims if they recognized him, the evidence is sufficient to enable a reasonable jury to conclude beyond a reasonable doubt that the killing of Maude Cheshewalla was premeditated.

Because we hold the evidence is sufficient to enable a reasonable jury, beyond a reasonable doubt, to find Sides guilty as a principal of two first degree felony murders--one of which was also first degree premeditated murder--it is beyond question there was sufficient evidence for a reasonable jury to find Sides guilty beyond a reasonable doubt of aiding and abetting

Page 1559

the two murders. We therefore reject Appellant's argument concerning the sufficiency of the evidence to show aiding and abetting.

Prior Convictions

Appellant next argues the district court denied him a fair trial by rejecting his motion in limine to exclude his prior convictions. 4 In support of the motion, Sides contended "the probative value of the convictions does not outweigh the prejudicial effect introduction of those convictions would have on the defendant's trial." Sides also argued "the court must make a specific finding that the probative value of the evidence of conviction...

To continue reading

Request your trial
158 practice notes
  • United States v. Rodella, No. CR 14-2783 JB
    • United States
    • United States District Courts. 10th Circuit. District of New Mexico
    • February 6, 2015
    ...of relevant matter [under rule 403]." United States v. Pettigrew, 468 F.3d 626, 638 (10th Cir. 2006)(quoting United States v. Sides, 944 F.2d 1554, 1563 (10th Cir. 1991))(internal quotation marks omitted). "In performing the 403 balancing, the court should give the evidence its maximum reas......
  • United States v. Deleon, No. CR 15-4268 JB
    • United States
    • United States District Courts. 10th Circuit. District of New Mexico
    • June 30, 2017
    ...of relevant matter [under rule 403]." United States v. Pettigrew, 468 F.3d 626, 638 (10th Cir. 2006)(quoting United States v. Sides, 944 F.2d 1554, 1563 (10th Cir. 1991)). The United States Court of Appeals for the Tenth Circuit has reminded district courts that they should be "mindful" tha......
  • U.S. v. Allen, No. 98-2549
    • United States
    • United States Courts of Appeals. United States Court of Appeals (8th Circuit)
    • January 10, 2000
    ...premeditated or committed Page 784 in the perpetration of any of the listed felonies, which include robbery." See United States v. Sides, 944 F.2d 1554, 1557 (10th Cir.), cert. denied, 502 U.S. 989 (1991). Thus, a conviction under § 924(j), pursuant to § 1111(a), is valid under well-establi......
  • U.S. v. Pettigrew, No. 05-2187.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (10th Circuit)
    • October 12, 2006
    ...unfair prejudice, substantially outweighing probative value, which permits exclusion of relevant matter ...." United States v. Sides, 944 F.2d 1554, 1563 (10th Cir.1991) (quotation omitted). Accordingly, we will not disturb the District Court's balancing of these factors. That said, we must......
  • Request a trial to view additional results
158 cases
  • United States v. Rodella, No. CR 14-2783 JB
    • United States
    • United States District Courts. 10th Circuit. District of New Mexico
    • February 6, 2015
    ...of relevant matter [under rule 403]." United States v. Pettigrew, 468 F.3d 626, 638 (10th Cir. 2006)(quoting United States v. Sides, 944 F.2d 1554, 1563 (10th Cir. 1991))(internal quotation marks omitted). "In performing the 403 balancing, the court should give the evidence its maximum reas......
  • United States v. Deleon, No. CR 15-4268 JB
    • United States
    • United States District Courts. 10th Circuit. District of New Mexico
    • June 30, 2017
    ...of relevant matter [under rule 403]." United States v. Pettigrew, 468 F.3d 626, 638 (10th Cir. 2006)(quoting United States v. Sides, 944 F.2d 1554, 1563 (10th Cir. 1991)). The United States Court of Appeals for the Tenth Circuit has reminded district courts that they should be "mindful" tha......
  • U.S. v. Allen, No. 98-2549
    • United States
    • United States Courts of Appeals. United States Court of Appeals (8th Circuit)
    • January 10, 2000
    ...premeditated or committed Page 784 in the perpetration of any of the listed felonies, which include robbery." See United States v. Sides, 944 F.2d 1554, 1557 (10th Cir.), cert. denied, 502 U.S. 989 (1991). Thus, a conviction under § 924(j), pursuant to § 1111(a), is valid under well-establi......
  • U.S. v. Pettigrew, No. 05-2187.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (10th Circuit)
    • October 12, 2006
    ...unfair prejudice, substantially outweighing probative value, which permits exclusion of relevant matter ...." United States v. Sides, 944 F.2d 1554, 1563 (10th Cir.1991) (quotation omitted). Accordingly, we will not disturb the District Court's balancing of these factors. That said, we must......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT