U.S. v. Visinaiz, No. 04-4277.

• Decision Date: 16 November 2005
• Docket Number: No. 04-4277.
• Citation: 428 F.3d 1300
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Cruz Joaquin VISINAIZ, Defendant-Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

428 F.3d 1300

UNITED STATES of America, Plaintiff-Appellee, v. Cruz Joaquin VISINAIZ, Defendant-Appellant.

No. 04-4277.

United States Court of Appeals, Tenth Circuit.

November 16, 2005.

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Carlos A. Esqueda, Assistant United States Attorney (and Paul M. Warner, United States Attorney, on the brief), Salt Lake City, UT, for Plaintiff-Appellee.

Theodore R. Weckel, Salt Lake City, UT, for Defendant-Appellant.

Before SEYMOUR, EBEL, and KELLY, Circuit Judges.

PAUL KELLY, JR., Circuit Judge.

Defendant-Appellant Cruz Joaquin Visinaiz ("Visinaiz") appeals from his conviction and sentence for violation of 18 U.S.C. §§ 1111(a)¹ and 1153(a),² for second degree murder by an Indian in Indian Country. He was convicted by a jury and sentenced to 262 months imprisonment and ordered to pay restitution of $107,000. On appeal, Mr. Visinaiz contends that: (1) the evidence was insufficient for second degree murder, (2) the district court's instructions were plain error, (3) the prosecutor's comments during closing argument denied him a fair trial and constituted plain error, (4) the district court's jury selection procedure constituted plain or structural error because it impaired his right to peremptory challenges, (5) the district court abused its discretion on several evidentiary issues, (6) the district court erred in allowing a victim-witness to remain in the courtroom following his testimony; and (7) the district court's determination of facts at sentencing violated United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005). Our jurisdiction arises under 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a), and we affirm.

Background

On April 15, 2003, the decedent Clara Jenkins ("Jenkins"), was reported missing by her family members. Mr. Visinaiz, her friend, had informed her family members that he was concerned about her well-being as he had not seen her or spoken with her since April 12, 2003, in his home. VII R. Tr. at 446-47. Mr. Visinaiz asked his neighbor Mr. Nephi, Ms. Jenkins' relative, to contact Ms. Jenkins' other relatives, and they filed a missing person report.

Two officers from the Bureau of Indian Affairs ("BIA"), Officer Mountain Lion and Officer Pike-Cuch, arrived at Mr. Visinaiz's residence that same day. Mr. Visinaiz told the officers that he and Ms. Jenkins had been drinking hard alcohol and beer since early on in the day of April 12. Mr. Visinaiz told the officers that he had last seen her around 1:00 the following morning, at which time she had left his residence as a result of an argument over money. VI R. Tr. at 293. The officers were told that Ms. Jenkins had taken a red blanket with her and walked to one of Mr. Visinaiz's neighbors' homes.

Later on the evening of April 15, Mr. Visinaiz was visited by two other law enforcement agents. He told them that he had fought with Ms. Jenkins that night because he would not allow her to drive her vehicle while under the influence. See V R. Tr. at 135-37. One of these officers, Federal Bureau of Investigation ("FBI") Special Agent Wright, found a note on Ms. Jenkins' fence post written by Mr. Visinaiz, suggesting that Ms. Jenkins had left his house of her own accord. The following day, agents and officers searched the area to the southeast of Mr. Visinaiz's property, recovering a blue air mattress, a faded carpet, and a black plastic tarp below some logs. V R. Tr. at 154-55. Blood was recovered from each item, which was later determined to belong to Ms. Jenkins, and hair strands were found inside the air mattress, which were later determined to belong to Mr. Visinaiz. V R. Tr. at 155-63; VI R. Tr. at 346-48.

On April 17, 2003, a search warrant was executed at Mr. Visinaiz's home; blood and tissue were found on the wall and floor. VI R. Tr. at 317-20. After DNA analysis, these materials were determined to belong to Ms. Jenkins. Id. at 321. On May 4, 2003, Ms. Jenkins' body was discovered in the White River near Mr. Visinaiz's home, weighted down by cinder blocks tied together at Ms. Jenkins' hands and ankles. VI R. Tr. at 324-27. After an autopsy, the medical examiner determined that Ms. Jenkins died from at least four blunt force traumas to the head, causing three skull fractures. Id. at 205-09, 212-13. Ms Jenkins was approximately 68 years old, had two surgically repaired knees, was approximately 5 feet tall and weighed around 200 pounds, and often used a walker. See VI R. Tr. at 229-30, 356-67.

Mr. Visinaiz filed a stipulation of facts before trial in the form of two affidavits, the second affidavit and stipulation amended the first in a material way. XI R. Exs. D-6 & D-7. In the first, filed November 4, 2003, Mr. Visinaiz stated that after an afternoon and evening of drinking in his home, he and Ms. Jenkins began to argue, whereupon she threw an empty 40 ounce bottle of beer at him, striking him in the head. Upon being struck, Mr. Visinaiz stated that he became momentarily dazed, and threw a log from the nearby wood burning stove at a lamp directly behind Ms. Jenkins, in an attempt to scare her. According to the first stipulation and affidavit, though, the log accidentally struck Ms. Jenkins in the head, and she fell to the floor, where she struck her head again and died. In the second stipulation and affidavit, filed July 14, 2004, Mr. Visinaiz stated that after being struck by the empty 40 ounce bottle, he saw Ms. Jenkins cock her arm as if to throw a 12 ounce glass at him, and he approached her and repeatedly struck her head with a log. She thereafter fell to the floor, apparently dead.

Mr. Visinaiz testified that he became afraid and upset, and started worrying about reprisal from the decedent's family because he had run-ins with the decedent's relatives and based on his life experience, reservations "could be fairly dangerous places." VII R. Tr. at 526-27. He stored the dead body of his former friend in a crawl space underneath his home. He then attempted to clean the house, in order to remove evidence. He awoke the next morning, Saturday, and penned the note to Ms. Jenkins, placed it on the fence post, where it was later discovered by Agent Wright. After awaking on Sunday, with the dead body still in his crawl space, Mr. Visinaiz wrapped Ms. Jenkins' body in the air mattress and tarp, attached the cement blocks to her wrists and ankles, placed her in her van, and drove her body to the White River. He removed the coverings and dumped her body in the water. He later admitted to hiding the coverings under some wood. VII R. Tr. at 622-23.

Discussion

A. Sufficiency of the Evidence

Mr. Visinaiz argues on appeal that the government did not prove beyond a reasonable doubt that he was guilty of second degree murder. Mr. Visinaiz moved for a judgment of acquittal after the guilty verdict which the district court rejected based upon the manner of the victim's death, specifically multiple blows to the head, and the affirmative steps that Mr. Visinaiz took to cover up his crime, including weighting the victim's body with cement blocks and sinking her in a nearby river. II R. Doc. 255 at 1-2; Fed.R.Crim.P. 29(c).

We review the record for sufficiency of the evidence de novo. United States v. Hamilton, 413 F.3d 1138, 1143 (10th Cir.2005). In so doing, "we view the evidence in the light most favorable to the government, and determine whether a reasonable jury could have found the defendant guilty of the crime beyond a reasonable doubt." Id. (internal citations and quotations omitted).

In order to convict Mr. Visinaiz of second degree murder in Indian Country under 18 U.S.C. §§ 1111(a), 1153(a), the government is required to prove that he: (1) killed Ms. Jenkins, (2) acted unlawfully, (3) acted with malice, (4) is an Indian, and (5) committed the crime within Indian Country. See 18 U.S.C. §§ 1111(a), 1153(a).³

With regard to the first element, we find that the evidence is surely sufficient to support the jury's finding that Mr. Visinaiz killed Ms. Jenkins. Indeed, Mr. Visinaiz himself admitted several times to killing her, as well as to striking her on the head repeatedly. VII R. Tr. at 491, 520-21; V R. Tr. at 143, 147, 149.

With regard to the second element, that Mr. Visinaiz acted unlawfully in killing Ms. Jenkins, the evidence is again sufficient to support the jury's finding that the killing was unlawful; i.e., without excuse or justification. Viewing the evidence in the light most favorable to the government, a jury could find that the government proved that Mr. Visinaiz did not act in self-defense, because he either did not believe, or could not reasonably believe, that he was in imminent danger of death or serious bodily injury, such that it was necessary for him to use force likely to cause the death or serious bodily injury of the victim. The jury could consider that Ms. Jenkins was 68 years old, was approximately five feet tall and weighed around 200 pounds, had two surgically repaired knees, and often used a walker. See VI R. Tr. at 229-30, 356-57. Ms. Jenkins was severely intoxicated, and had been ingesting prescription sedative medication. Id. at 226-28. Mr. Visinaiz, on the other hand, was 46 years old at the time, is five foot ten inches, and weighed approximately 175 pounds. VI R. Tr. at 261-62. Even assuming Mr. Visinaiz was hit by an empty 40 ounce bottle and suffered a laceration, he struck Ms. Jenkins at least four times in the head with a log. See VII R. Tr. at 491, 520-21.

With regard to the malice element, the evidence is sufficient to support the jury's finding that the killing was committed with the required mens rea. Malice, as defined for purposes of second degree murder, requires either: (1) general intent to kill, or (2) intent to do serious bodily injury; (3) depraved heart recklessness, or (4) a killing in the commission of a felony that is not among those specifically listed in the first degree murder statute. United States v....