U.S. v. Steel

• Decision Date: 30 April 1985
• Docket Number: No. 84-3104,84-3104
• Citation: 759 F.2d 706
• Parties: 18 Fed. R. Evid. Serv. 1061 UNITED STATES of America, Plaintiff-Appellee, v. Scott David STEEL, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 706

759 F.2d 706

18 Fed. R. Evid. Serv. 1061

UNITED STATES of America, Plaintiff-Appellee, v. Scott David STEEL, Defendant-Appellant.

No. 84-3104.

United States Court of Appeals Ninth Circuit.

Argued and Submitted April 2, 1985.

Decided April 30, 1985.

Robert L. Zimmerman, Asst. U.S. Atty., Billings, Mont., for plaintiff-appellee.

Michael J. Sherwood, Missoula, Mont., for defendant-appellant.

Appeal from the United States District Court for the District of Montana.

Before WRIGHT, KENNEDY, and ANDERSON, Circuit Judges.

J. BLAINE ANDERSON, Circuit Judge:

Appellant Scott David Steel was convicted by a federal jury on counts of first-degree murder, theft of a motor vehicle, and interstate transportation of a stolen motor vehicle. In asking for a new trial, appellant raises numerous allegations of error. We reject each of appellant's allegations and affirm the conviction on all three counts.

I. BACKGROUND

On July 12, 1983, appellant was hitchhiking in Montana. At the same time, Fredrick Pongrace was driving west toward Seattle, Washington in his 1968 Volkswagen Van. Pongrace picked up appellant and the two traveled together the rest of the day, stopping for the night at a campground near Cut Bank, Montana. At dawn the next morning, July 13, an altercation arose between the owner of the campground, one Bomar, and the two travelers. At trial, Bomar testified that he confronted appellant with a shotgun because appellant's dog, which was traveling with appellant, had been running loose and frightening other campers. Bomar testified that appellant responded by drawing a knife, as if to attack Bomar. Consequently, Bomar testified, he expelled the travelers from the campground.

Appellant and Pongrace drove directly from the campground to Browning, Montana, where they called the Cut Bank sheriff to complain about Bomar. Subsequently, the two drove into Glacier National Park, where sometime during the day they separated. Appellant was seen at a bar in Glacier National Park for several hours in the afternoon. Pongrace's precise whereabouts during this time are unknown, although it is known that during this time Pongrace placed a second call to the Cut Bank sheriff from an undisclosed location.

Several hours later, at approximately 2:00 a.m. on July 14, a wrecker was summoned to pull a Volkswagen Van out of a ditch near Ronan, Montana, approximately 70 miles south of Glacier National Park. The lone occupants of the van were appellant and his dog. The van was Pongrace's. Appellant stated that he had no money and paid the wrecker by giving him Pongrace's camera.

At 9:00 a.m. on the 14th, a pair of trousers were found discarded along the highway near Hamilton, Montana, approximately 170 miles south of Glacier National Park. In the trousers was a wallet with appellant's fingerprints. In addition, the trousers were stained with blood, consistent in type with both the appellant and Pongrace.

At 10:25 a.m. on the 14th, Pongrace's body was found at the base of a cliff in Glacier National Park. An autopsy was performed and the cause of Pongrace's death was determined to be due to injuries sustained in the fall down the cliff.

Meanwhile, appellant continued traveling south, eventually arriving at his sister's home in Los Angeles on July 15. Within days, appellant abandoned Pongrace's van in downtown Los Angeles and left town by hitchhiking. Ten months later, on May 29, 1984, appellant surrendered himself to the police in St. George, Utah.

On June 5, 1984, the Montana State Medical Examiner concluded, after studying photographs of Pongrace's body, that certain wounds on the body were stab wounds, rather than wounds sustained in the fall down the cliff. The Medical Examiner further opined that Pongrace had died before his body fell down the cliff, premised upon the lack of blood flow from punctures caused by the fall. Appellant was subsequently tried and convicted of first-degree murder in the death of Fredrick Pongrace, theft of Pongrace's van, and interstate transportation of Pongrace's stolen van.

II. DISCUSSION

A. Government Witness List

Under 18 U.S.C. Sec. 3432, any person indicted for a "capital crime" must be provided with a prosecution witness list before trial. The district court denied a motion to require the government to furnish such a list, presumably because the death penalty provision of 18 U.S.C. Sec. 1111 was rendered unconstitutional by Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972), and United States v. Kaiser, 545 F.2d 467 (5th Cir.1977), thereby eliminating first-degree murder as a "capital crime." Appellant challenges this ruling by the district court, arguing that the witness list provision should survive Furman.

We have not previously decided whether the invalidation of the death penalty also invalidates the right to a witness list in prosecutions for capital crimes. Generally, the law in this circuit is that a witness list need not be provided in non-capital cases. United States v. Sukumolachan, 610 F.2d 685, 688 (9th Cir.1980); United States v. Angelini, 607 F.2d 1305, 1308 (9th Cir.1979). The Fifth Circuit has held that murder under 18 U.S.C. Sec. 1111 is no longer "capital" and, therefore, a witness list is not required. Kaiser, 545 F.2d at 475. This court has said, however, that "[Furman ] did not necessarily have the effect of invalidating all statutes that were tied to the concept of a 'capital' case. If the statute's purpose derives from the nature of the offense with which the defendant is charged and not from the potential severity of the punishment, it remains in effect." United States v. Kennedy, 618 F.2d 557, 558 (9th Cir.1980).

Appellant argues that Sec. 3432 is premised upon the nature of the offense in that a witness list is designed to compensate for the revulsion which a murder charge generates in the trier of fact as well as the inherent complexity of these types of cases. We are not persuaded by this logic. In our view, the purpose of the witness list right is to reduce the chance that an innocent defendant would be put to death by providing a pretrial safeguard not available in noncapital criminal prosecutions. Therefore, since the statute's purpose derives from the severity of the punishment rather than from the nature of the offense, we hold that the elimination of the death penalty also eliminated the appellant's right under 18 U.S.C. Sec. 3432 to a prosecution witness list.

B. Additional Counsel

Appellant moved prior to trial for the appointment of a second defense attorney. The district court denied the motion, relying on United States v. Dufur, 648 F.2d 512 (9th Cir.1980), cert. denied, 450 U.S. 925, 101 S.Ct. 1378, 67 L.Ed.2d 355 (1981). In Dufur, this court held that 18 U.S.C. Sec. 3005, which gave persons indicted for capital crimes a right to two attorneys, was eliminated along with the elimination of the death penalty. Dufur did not say that the court could not, in its discretion, appoint more than one attorney. Such a decision, therefore, is left to the sound discretion of the district court, taking into consideration the circumstances of each case. We decline to reconsider the reasoning of Dufur, as appellant requests, and reaffirm the holding in that case.

In its order denying the motion at bar, the district court appeared to read Dufur as denying the authority to appoint additional counsel. Inasmuch as we hold that such a decision is indeed discretionary, however, we hold also that the district court did not abuse its discretion in denying a second counsel in this case. Appellant was represented by able and competent counsel, and all possible defenses were thoroughly presented. ¹ We can see no abuse of discretion in denying additional counsel under the circumstances of the case. On this record the denial was harmless.

C. Accidental Viewing of the Appellant

On the day set for the beginning of trial, the appellant was being moved into the courthouse by a federal marshal. Appellant was secured in handcuffs and belly chains. Quite by accident, fifteen to twenty of the prospective jurors passed within four feet of appellant in the hallway. An unidentified panel member remarked something to the effect of "that must be the criminal." Appellant immediately made a motion to disqualify the jury panel, which the district court denied.

The district court carefully questioned the marshal and determined that the meeting had been brief, that few of the potential jurors had appeared to actually see appellant, and, therefore, that the potential jurors had not been tainted. Subsequently the district court conducted a careful and thorough voir dire, due to publicity surrounding the trial, to ensure that each juror selected would be fair and impartial. Under these circumstances, the fact that some of the potential jurors may have seen appellant in the custody of the marshal was not so inherently prejudicial as to require that the entire jury panel be disqualified. See United States v. Figueroa-Espinoza, 454 F.2d 590, 591 (9th Cir.1972). We hold that the district court did not abuse its discretion in denying this motion.

D. Jury Instructions

Appellant raises three allegations of error with respect to the jury instructions issued by the district court. At the outset, we note that the district court has broad discretion in formulating the instructions, and neither party may demand specific language. The district court must, however, instruct on any legitimate theory of defense that is supported by the evidence. On review, this court must consider the instructions as a whole in determining whether the district court abused its discretion. United States v. Wellington, 754 F.2d 1457, 1462 (9th Cir.1985).

In its instructions, the district court stated:

The punishment provided by law ... is a matter exclusively within the province of the court and should never be considered by the jury at arriving at an impartial verdict in arriving at the...