U.S. v. Waloke

• Decision Date: 27 April 1992
• Docket Number: No. 91-2493,91-2493
• Citation: 962 F.2d 824
• Parties: 35 Fed. R. Evid. Serv. 731 UNITED STATES of America, Appellee, v. Mareno M. WALOKE, Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 824

962 F.2d 824

35 Fed. R. Evid. Serv. 731

UNITED STATES of America, Appellee, v. Mareno M. WALOKE, Appellant.

No. 91-2493.

United States Court of Appeals,

Eighth Circuit.

Submitted Dec. 13, 1991.

Decided April 27, 1992.

Ramon Roubideaux, Rapid City, S.D., argued, for appellant.

Mikal Hanson, Asst. U.S. Atty., Pierre, S.D., argued, for appellee.

Before GIBSON, Circuit Judge, FRIEDMAN, ^* Senior Circuit Judge, and MAGILL, Circuit Judge.

FRIEDMAN, Senior Circuit Judge.

The appellant Mareno M. Waloke challenges his assault convictions in a jury trial on various grounds: The evidence does not support the convictions, the district court improperly admitted certain evidence, and erroneously excluded other evidence, and the court failed to give a necessary jury instruction. He also contends that the district court erroneously applied the Sentencing Guidelines. We reject all of these contentions and affirm the convictions and sentence.

I.

After a jury trial in the United States District Court for the District of South Dakota, Waloke, an American Indian, was convicted in two counts of assault with a dangerous weapon and assault resulting in serious bodily injury, in violation of 18 U.S.C. § 113(c) and (f) (1988). The district court (Porter, D.J.) in an opinion denied Waloke's motion to set aside the verdict and enter a judgment of acquittal or for a new trial. The court sentenced Waloke to 57 months imprisonment, followed by three years of supervised release, and a $100 special assessment.

The events that lead to this prosecution and conviction occurred on the night of October 26-27, 1990, in the town of Dupree, South Dakota, on the Cheyenne River Sioux Indian Reservation, giving the district court jurisdiction under 18 U.S.C. § 1153 (1988). Viewing the evidence most favorably to the prosecution and drawing all reasonable inferences that support the verdict, United States v. Stuart, 923 F.2d 607, 611 (8th Cir.), cert. denied, --- U.S. ----, 111 S.Ct. 1599, 113 L.Ed.2d 662 and sub nom. Hayden v. United States, --- U.S. ----, 112 S.Ct. 145, 116 L.Ed.2d 111 (1991), the jury could have found the following facts:

After drinking among Waloke, his wife Darshane, and her parents, Carlin and Virginia Clown, on the evening of October 26th in Waloke's house, Carlin and Virginia Clown returned to their home and renewed drinking with several of Virginia's friends. Darshane arrived at her parents' house crying and upset. She said that Waloke had tried to hit her and that if Waloke came there, they should tell him that she was not there.

Late in the evening Waloke arrived at the Clown residence and asked for Darshane. Carlin Clown asked Waloke to leave and blocked his access to Darshane, who was in a bedroom trying to avoid Waloke. Waloke got angry and hit Carlin in the face with his fist and knocked him to the floor.

Darshane's brother, Daryl Clown, chased Waloke from the house and, with his father, down the street. Unable to catch him, they returned to the Clown house. Waloke returned to the front of the house and shouted that if Darshane were not sent outside, he would break automobile car windows. When Darshane did not appear, Waloke put a rake through the rear window of the car of one of the guests at the house, and left the area.

Early in the morning on October 27th, Waloke and Darshane met at the house of Wendy Charger, where people were drinking beer. They had an argument. Waloke left the house as requested, and shouted from outside that Darshane should come out. Darshane, who was crying, told people inside the house that she did not want to go because Waloke would hit her for what had happened at her father's house earlier that night.

Narcisse Widow, the victim of the assault, who was in the Charger house during the foregoing events, went outside to talk to Waloke. He was supposedly related to Waloke and hoped to get him to settle down and come inside or to leave without Darshane. Widow and Waloke "exchanged words" outside the house and "were arguing". Waloke struck Widow in the face with the handle of a metal hoe he had in his hand. The blow fractured Widow's cheekbone and eye socket bone, knocked out both upper and lower jaw teeth and created a large laceration from the top of Widow's upper lip to the eye socket. Widow had to undergo reconstructive facial surgery and now suffers permanent disfigurement. He still has pain and numbness.

Waloke then threatened other people at the party with the hoe and then dropped it on the road in front of the Charger house before returning to his home. Another guest at the Charger party later picked up the object Waloke had dropped and threw it across the road in the ditch. This was the location at which police officers later recovered the metal hoe, which was introduced at trial.

The police later came to Waloke's house, where he was hiding from the police and where he surrendered to them. On emerging from the house, he stated: "Go ahead and handcuff me, I did it." During the automobile drive from his house to the police station Waloke made several spontaneous comments to Sergeant Hunger, who was driving the car, including: "I know I am guilty"; "I was at a house, this guy was after me ... wanting to fight and I got tired of it, so I went outside and found something ... I found a pipe and hit this guy in the face with it"; and "I'm guilty."

II. Sufficiency of the Evidence

Waloke contends that the evidence was insufficient to support the verdict and that the district court therefore erred in denying his motion to set aside the verdict and enter a judgment of acquittal or alternatively to order a new trial. He relies on his testimony and that of his wife that Widow was the aggressor and that, in committing the assault, which he admitted doing, he acted in self-defense.

The jury had ample basis for rejecting Waloke's self-defense claim.

Waloke testified that when he and Widow were inside the Charger house, Widow hit him and knocked him down; that when he "tried to get up" from the floor, Widow kicked him "a few times in the legs"; that after he got up, Widow told him in Indian language, Lakota, that Widow was going "to really teach me a lesson and he was going to make me holler some more"; and that Widow started to take his jacket off. Waloke stated that he "ran out" the door and "found something up against the house and I turned around and I hit Narcisse Widow in the face." He admitted that when he left the house there was "nobody standing or blocking [him]" from "going to [his] home."

Widow testified, however, that prior to the assault, he had not struck, hit or kicked Waloke, that he did not know who at the party would understand Lakota and did not know whether there is a phrase in Lakota "that loosely translated means I'm going to make you scream or holler" and "wouldn't know how to say it." Two of the other guests at the party testified that they did not see Widow hit or kick Waloke.

Waloke also testified that he had a "big old lump" on the left side of his forehead and "bruises about [his] legs from being kicked." The officers who arrested him, however, did not see any bruises on his face or observe that his clothing (which he also had worn at the Charger house) was torn or roughed up.

Finally, there was the evidence that on his arrest, Waloke had told the police officers "I did it," and that during the ride from Waloke's house to the police station he stated, "this guy was after me ... wanting to fight and I got tired of it, so I went outside and found something ... I found a pipe and hit this guy in the face with it" and "I'm guilty." The jury justifiably could have concluded that if Waloke believed he had acted in self-defense, he would have so told the police.

The evidence thus raised questions of credibility. It was for the jury to resolve these witness credibility issues. United States v. Marshall, 922 F.2d 479, 479 (8th Cir.1990), citing United States v. Big Crow, 898 F.2d 1326, 1329 (8th Cir.1990). We have no basis for rejecting the jury's determination to accept the testimony of the government's witnesses and reject that of the defendants.

As the district court correctly stated in denying Waloke's post conviction motion to set aside the verdict, "there was sufficient evidence for the jury to conclude the defendant was not acting in self-defense when he struck the victim in the face with a metal garden hoe." Indeed, Waloke's claim that he acted in self-defense was totally undermined by his own testimony that when he ran out of the Charger house, there was no one to prevent him from returning to his own house, but that, instead, he "found something up against the house and I turned around and I hit Narcisse Widow in the face."

III. Evidentiary Rulings

A. The Earlier Incident at the Clown House. Although evidence of a defendant's prior bad acts generally is not admissible, it is admissible when it relates to an "integral part of the immediate context of the crime charged." United States v. Bass, 794 F.2d 1305, 1312 (8th Cir.), cert. denied, 479 U.S. 869, 107 S.Ct. 233, 93 L.Ed.2d 159 (1986). Evidence of the earlier bad act is admissible when it is "so blended or connected with the one on trial as that proof of one incidentally involves the other; or explains the circumstances thereof." Bracey v. United States, 142 F.2d 85, 88 (D.C.Cir.), cert. denied, 322 U.S. 762, 64 S.Ct. 1274, 88 L.Ed. 1589 (1944) (footnotes omitted); United States v. Tate, 821 F.2d 1328, 1331 (8th Cir.1987), cert. denied, 484 U.S. 1011, 108 S.Ct. 712, 98 L.Ed.2d 662 (1988); United States v. Derring, 592 F.2d 1003, 1007 (8th Cir.1979).

The prior incident at the Clown House occurred only a few hours earlier on the same night. As the district court explained in rejecting Waloke's challenge to the admission of this evidence:

The victim and the defendant's wife were both at a party at the Wendy Charger resident. The victim, as well as other witnesses, testified the defendant's...