U.S. v. Taylor

• Decision Date: 29 January 2008
• Docket Number: No. 06-1449.,06-1449.
• Citation: 514 F.3d 1092
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Johnson Kenneth TAYLOR, Defendant-Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

514 F.3d 1092

UNITED STATES of America, Plaintiff-Appellee, v. Johnson Kenneth TAYLOR, Defendant-Appellant.

No. 06-1449.

United States Court of Appeals, Tenth Circuit.

January 29, 2008.

Jill M. Wichlens, Assistant Federal Public Defender (Raymond P. Moore, Federal Public Defender, with her on the briefs), Denver, CO, for Defendant-Appellant.

Andrew A. Vogt, Assistant United States Attorney (Troy A. Eid, United States Attorney, with him on the brief), Denver, CO, for Plaintiff-Appellee.

Before BRISCOE, Circuit Judge, McWILLIAMS, Senior Circuit Judge, and GORSUCH, Circuit Judge.

GORSUCH, Circuit Judge.

During opening statements at Johnson Kenneth Taylor's trial arising out of a fight that he initiated on the Southern Ute Indian Reservation, the prosecutor urged the jury to convict Mr. Taylor in order to "end the cycle of violence" on the reservation. Mr. Taylor objected to this remark and the district court promptly issued a curative instruction. Mr. Taylor did not voice any concerns about the content or sufficiency of the instruction or any lingering prejudice. Accordingly, the trial proceeded and, after three days, resulted in Mr. Taylor's conviction. Mr. Taylor now contends for the first time on appeal that the prosecutor's remark was insufficiently addressed by the district court's instruction.

There is no question that the prosecutor's remark was inappropriate. The jury's role in a criminal trial is to find facts related to the defendant's innocence or guilt, a function in which prosecutorial appeals to the resolution of social ills play no useful role. Nevertheless, because Mr. Taylor expressed no dissatisfaction with the ameliorative course adopted by the district court, we are able to review the district court's failure to issue either a mistrial or further corrective instruction sua sponte only for the presence of plain error. Discerning none, we affirm.

I

Viewing the facts in the light most favorable to the jury's verdict, as we must, this case arose from a fight at an outdoor party. Following a tribal powwow, Mr. Taylor, the victim Justin Boyd, and several others went to a bar in Ignacio, Colorado where they drank heavily and used cocaine. When the bar closed, the group drove to a remote location on the reservation to continue the party, stopping on the way to pick up more alcohol. Roughly 200 people attended. At some point during the party, Mr. Taylor's ex-wife, Raylene Echohawk, became distraught and told Mr. Taylor that a man had made lewd comments to her and groped her. Ms. Echohawk then saw Mr. Boyd and indicated that he was the man in question. Mr. Taylor ran over to the car in which Mr. Boyd was sitting in the front passenger side seat. Mr. Taylor approached the side of the car and, through an open window, struck Mr. Boyd twice on the right side of his face. Mr. Taylor then opened the car door and dragged Mr. Boyd from the vehicle.

Mr. Boyd testified at trial that he subsequently ended up on the ground on his hands and knees, where he was repeatedly kicked in the face and ribs by multiple people. Mr. Boyd lost consciousness during the beating, and was dragged 50 yards from the car. He was left semi-conscious in nearby bushes and his wallet, cell phone, belt, and cocaine were stolen. The next morning, a bloodied Mr. Boyd regained consciousness and managed to walk 20 minutes to a house where he sought assistance for his injuries. He was taken to a hospital, and several days later had plastic surgery to repair a shattered orbital bone around his left eye. His lip and nose were scarred, and he continues to suffer from double vision and "flashes."

On March 10, 2005, a federal grand jury indicted Mr. Taylor on one count of assault resulting in serious bodily injury, or aiding and abetting such an assault, in violation of 18 U.S.C. §§ 2, 113(a)(6), and 1153. After three days of testimony and deliberations, the jury found Mr. Taylor guilty as charged.

During opening statements at trial, the prosecutor made the following remark:

You have to kind of put yourself in the shoes of those living on the Southern Ute Reservation and look at it through their eyes and get past the alcohol arid the cocaine, not that it doesn't happen here every day with our families and friends. That's the reality of the reservation.

This case is about asking you, the jury, to tell Johnson Taylor that he had no justifiable sufficient legal right to sucker punch Justin Boyd, to scar him permanently, and to end the cycle of violence out there.

Trial Tr. at 161. Defense counsel immediately objected that the remark was "inappropriate." Id. The court responded by admonishing the jury to "remember that what the lawyers tell you is not evidence, and the evidence in the case is what you must decide." Id. at 161-162. Defense counsel did not object to the content of the court's instruction, move for further instructions, move for a mistrial, or otherwise register any dissatisfaction with the court's curative course.

After entry of judgment, Mr. Taylor appealed his conviction arguing for the first time that the district court's instruction was insufficient to cure the prejudice created by the prosecutor's remark and that a new trial is necessary.

II

A criminal trial is about the innocence or guilt of the individual defendant as measured against the statutory elements devised by Congress. Comments suggesting to the jury that a guilty verdict may be proper for reasons outside of the four corners of the statute run the risk of erroneous convictions. Appeals about the need to address societal ills speak not to the question whether the accused committed the, crime alleged, but divert attention from that diapositive question and confuse the task of the jury—as finder of fact— with the task of elected officials—as the authors of social policy. Our sister circuit captured our concern when it explained that "[t]he amelioration of society's woes is far too heavy a burden for the individual defendant to bear." United States v. Monaghan, 741 F.2d 1434, 1441 (D.C.Cir, 1984).

On appeal, the impropriety of the prosecutor's remark is common ground. Throughout its oral presentation, the government conceded that the comment had no proper place at trial. The remaining disputed question before us is, thus, whether the district court's curative instruction, not objected to by defense counsel, sufficed to address the prejudice suffered by the defendant. In confronting that question, we must first resolve an antecedent question concerning the appropriate standard of review.

A

Where the defendant contemporaneously moves for a mistrial on the basis of prosecutorial misconduct, we review the denial of such a motion for abuse of discretion. United States v. Gabaldon, 91 F.3d 91, 94 (10th Cir.1996). By contrast, in cases of prosecutorial misconduct in which the defendant makes no objection, our precedent limits us to plain error review. See, e.g., United States v. Hall, 473 F.3d 1295, 1305 (10th Cir.2007); United States v. Russell, 109 F.3d 1503, 1514 (10th Cir. 1997). The case before us falls somewhere between these two extremes: on the one hand, Mr. Taylor did lodge a contemporaneous objection to the prosecutor's remark but, on the other hand, he did not move for a mistrial and the court rapidly responded with a curative instruction to which counsel issued no complaint.

We think that the rationales for applying plain error review apply here, and that standard of review ought to control. The district court issued a curative instruction in response to Mr. Taylor's objection, effectively agreeing with Mr. Taylor that the challenged action was, in fact, prosecutorial misconduct. Because it sided with him, Mr. Taylor cannot fairly be said to be appealing the district court's ruling on his objection. See United States v. Inglese, 282 F.3d 528, 538-39 (7th Cir.2002) ("Even if the government's comment was improper, because [the defendants] received the relief that they requested, there is no adverse ruling about which they can complain."). Instead, Mr. Taylor's complaint can more accurately be said to pertain to the adequacy of the district court's curative actions. That is, the gravamen of Mr. Taylor's appeal is that, even after the district court's instructions to the jury, there remained a modicum of uncured prejudice sufficient to imperil his right to a fair trial. Mr. Taylor did not, however, alert the district court to his belief on this score. He neither advanced a contemporaneous objection to the district court's curative instruction, nor moved for a mistrial. Such actions, which would have given the district court the information necessary to evaluate the need for further curative steps, would have properly preserved the claim of error for appeal. Instead, for all that the district court knew, it had addressed Mr. Taylor's complaint to his satisfaction; it had no reason to believe any further issue or concern remained. Where this happens—where a party seeks on appeal to raise an issue not squarely presented to the district court in order to allow it to exercise its judgment in the first instance—we traditionally review only for plain error.

The rationale for this rule stems from concerns of fairness, an appreciation of the benefits of adversarial process, and the promotion of effective appellate review. If failing to object does not yield a more deferential standard of review than when an objection is interposed, savvy litigants, after having protested opposing counsel's remarks, would be encouraged by our legal rules to remain mum about any problems they see lurking in a district court's proffered curative instructions and raise those concerns only on appeal. Such a rule would thus effectively invite litigants to sandbag opponents and the district court and afford them no opportunity to address and correct, if possible, any alleged deficiency in the court's curative actions.¹ Such a rule would likewise tend to hamper our appellate...