U.S. v. Talamante

• Decision Date: 16 December 1992
• Docket Number: No. 92-2010,92-2010
• Citation: 981 F.2d 1153
• Parties: 37 Fed. R. Evid. Serv. 840 UNITED STATES of America, Plaintiff-Appellee, v. Fernando TALAMANTE, Defendant-Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 1153

981 F.2d 1153

37 Fed. R. Evid. Serv. 840

UNITED STATES of America, Plaintiff-Appellee, v. Fernando TALAMANTE, Defendant-Appellant.

No. 92-2010.

United States Court of Appeals Tenth Circuit.

Dec. 16, 1992.

David N. Williams (Don J. Svet, U.S. Atty., and Joe M. Romero, Jr., Asst. U.S. Atty., with him on the briefs), Albuquerque, NM, for plaintiff-appellee.

Ray Twohig, Albuquerque, NM, for defendant-appellant.

Before SEYMOUR, LAY, ^* and MOORE, Circuit Judges.

JOHN P. MOORE, Circuit Judge.

Fernando Talamante appeals his conviction and sentence for assault resulting in serious bodily injury under 18 U.S.C. §§ 1153 and 113(f). He argues the trial court erred in excluding evidence of specific instances of violent conduct of the victim. He also contends the trial court misapplied the sentencing guidelines by enhancing his sentence based on infliction of a permanent or life-threatening injury. We affirm.

While driving around the Jicarilla Apache Indian Reservation in Dulce, New Mexico, Mr. Talamante and a friend noticed an acquaintance's car in a gas station. They pulled into the station, and Mr. Talamante walked over to the car. The victim, David Perea, another acquaintance of Mr. Talamante's, was sitting in the passenger seat of the car. Although the parties dispute the details of the exchange between the victim and Mr. Talamante, they agree that Mr. Talamante took three swings at the victim. His blows ruptured the victim's right eye, which resulted in surgery to remove the eye. The victim did not strike Mr. Talamante.

During the trial, Mr. Talamante contended "bad blood" existed between the victim and him. He testified the victim began insulting him as he approached the car. The victim then said, "I'm going to get you," and tried to open the car door. Because he feared the victim was coming to attack him, Mr. Talamante pushed the car door shut and then hit him. Based on this testimony, the court instructed the jury on self-defense.

Mr. Talamante also attempted to introduce evidence concerning his knowledge of several incidents involving the victim or his friends. Specifically, he sought to testify: (1) in 1986, Leonard Gonzales, a friend of the victim's, stabbed and beat him; (2) his brother, Robert Talamante, killed Alex Herrera, a close friend of the victim's, and Mr. Herrera's friends held a grudge against the Talamante family; (3) Teddy Montoya, another close friend of the victim's, stabbed him in 1988 or 1989; (4) he knew that the victim assaulted Buddy Vigil; (5) he knew that the victim assaulted Doris Hudson; and (6) he also knew that the victim and Buddy Vigil assaulted another man in 1984.

Mr. Talamante argued these incidents were crucial to his self-defense claim because they would prove the victim was the aggressor. To support the admission of this testimony, Mr. Talamante stated: "[Federal Rule of Evidence] 404(a)(2) permits the defendant to use evidence relating to his character or traits to prove that the person acted in conformity with those where a self-defense defense is raised, and where the defendant states that the victim was the aggressor." Moreover, he argued that, if the court allowed this testimony, Buddy Vigil, who was involved in two of the incidents, would testify and corroborate his knowledge of the victim's violent actions. The trial judge found no basis in the evidence to allow this testimony. ¹ Mr. Talamante now argues the trial judge erred in excluding the testimony.

I.

The district court has broad discretion in determining the admissibility of evidence. United States v. Alexander, 849 F.2d 1293, 1301 (10th Cir.1988). We review the trial court's evidentiary rulings for abuse of discretion. United States v. Esparsen, 930 F.2d 1461, 1475-76 (10th Cir.1991), cert. denied, --- U.S. ----, 112 S.Ct. 882, 116 L.Ed.2d 786 (1992); United States v. Harmon, 918 F.2d 115, 117 (10th Cir.1990). Under this standard, we will not disturb a trial court's decision unless we "ha[ve] a definite and firm conviction that the [trial] court made a clear error of judgment or exceeded the bounds of permissible choice in the circumstances." United States v. Ortiz, 804 F.2d 1161, 1164 n. 2 (10th Cir.1986).

Mr. Talamante makes several arguments to support the admissibility of this testimony. First, he asserts testimony concerning specific instances of the victim's conduct was admissible character evidence under Federal Rule of Evidence 404(a)(2) ² to prove that the victim was the aggressor.

Federal Rule of Evidence 405 ³ establishes the permissible methods of proving character under Rule 404(a)(2). Perrin v. Anderson, 784 F.2d 1040, 1045 (10th Cir.1986). Under Rule 405, a party may present testimony concerning specific instances of conduct only when "character is in issue 'in the strict sense.' " Id. (quoting Fed.R.Evid. 405 advisory committee's note). When character evidence is used circumstantially to create an inference that a person acted in conformity with his or her character, Rule 405 allows proof of character only by reputation and opinion. Id.; Fed.R.Evid. 404(a) advisory committee's note; Fed.R.Evid. 405 advisory committee's note. In Perrin, we determined that use of evidence of a victim's violent character to prove that the victim was the aggressor is circumstantial use of character evidence. 784 F.2d at 1045 (citing Fed.R.Evid. 404(a) advisory committee's note); see Government of Virgin Islands v. Carino, 631 F.2d 226, 229 (3d Cir.1980) (Rule 405(a) limits evidence permitted for proof of character to opinion and reputation evidence). Since Mr. Talamante offered testimony describing specific instances of the victim's conduct, as opposed to reputation or opinion evidence, this testimony was not admissible under Rule 404(a)(2) to prove that the victim acted in conformity with the conduct.

Second, in this appeal, Mr. Talamante relies on Rule 404(b). ⁴ Because he had knowledge of each of the six incidents, Mr. Talamante argues they were admissible under Rule 404(b) to show his state of mind and his reasonable fear of the victim. His knowledge of the victim's and his close associates' violent conduct, he asserts, "color[ed] his reasonable interpretations of [the victim's] actions."

At trial, although defense counsel indicated the evidence was probative of Mr. Talamante's state of mind, he never mentioned Rule 404(b). In ruling on the evidence, the trial judge simply stated "[t]here's no basis on the evidence so far to allow that." Consequently, the court did not evaluate whether the evidence met the stringent criteria we have required for admission under Rule 404(b). See United States v. Kendall, 766 F.2d 1426, 1436 (10th Cir.1985), cert. denied, 474 U.S. 1081, 106 S.Ct. 848, 88 L.Ed.2d 889 (1986); see also United States v. Harrison, 942 F.2d 751, 759 (10th Cir.1991) (even if evidence is relevant under Rule 404(b), the court may exercise its discretion and exclude the evidence under Rule 403). ⁵ Thus, the record gives no indication of how the trial court would have applied Rule 404(b) in this case.

Mr. Talamante cites Government of Virgin Islands v. Carino, 631 F.2d at 229-30, in which the Third Circuit found evidence of the victim's manslaughter conviction admissible under Rule 404(b) to demonstrate the fear and the state of mind of the defendant at the time of the incident. The court found, although the Federal Rules of Evidence do not refer to admissibility specifically for this purpose, the Rules do not change precedent that established the acts of the victim are admissible to corroborate the defendant's contention that he reasonably feared bodily injury. Id. at 229 (quoting United States v. Burks, 470 F.2d 432, 435 (D.C.Cir.1972)). This use of a victim's prior acts, the court held, is close to some of the uses listed in Rule 404(b). Id. Since the 404(b) list is not exclusive, this use falls within the rule. Id.; see also United States v. Waloke, 962 F.2d 824, 830 (8th Cir.1992) (quoting United States v. Barry, 814 F.2d 1400, 1403 n. 6, 1403-04 (9th Cir.1987)) (Rule 405(b) allows proof of specific acts of victim when character or trait of character is an essential element of a claim or defense); United States v. Rocha, 916 F.2d 219, 241 (5th Cir.1990) (because evidence of specific acts was probative of an issue other than character, it is admissible under Rule 404(b)), cert. denied, --- U.S. ----, 111 S.Ct. 2057, 114 L.Ed.2d 462 (1991).

This Circuit has not addressed whether Rule 404(b) encompasses use of evidence of the victim's past conduct to demonstrate the defendant's reasonable fear. We need not determine the admissibility of the evidence under Rule 404(b), however, since, even assuming the trial court erred in excluding the evidence, we find the error was harmless. Mr. Talamante testified he felt that "there[ ] [was] going to be a fight," and, if he did not strike, the victim would come after him when he tried to walk away. On cross-examination, Mr. Talamante admitted, after he closed the car door, he "couldn't say that [the victim] was threatening" him. He also conceded that he threw the first punch. Mr. Talamante's preemptive strike, taken when the victim was not threatening him, severely weakens his self-defense claim. See United States v. Goodface, 835 F.2d 1233, 1235-36 (8th Cir.1987) (self-defense claim not warranted when defendant's actions indicate he failed to withdraw from conflict when he could do so safely). Although the excluded testimony may have explained his fear, we are convinced that it could not have assisted his self-defense claim significantly. ⁶ See United States v. Litchfield, 959 F.2d 1514, 1520 (10th Cir.1992).

Finally, Mr. Talamante argues that the trial court's decision to exclude the evidence violated his constitutional right to present a defense. The trial court's exclusion of his proffered testimony, he contends, severely impaired his ability to impeach the victim and to present a self-defense claim.

A defendant has a right based...