U.S. v. Whitetail, 91-1400
| Decision Date | 12 February 1992 |
| Docket Number | No. 91-1400,91-1400 |
| Citation | 956 F.2d 857 |
| Parties | 35 Fed. R. Evid. Serv. 150 UNITED STATES of America, Appellee, v. Emrolyn Kae WHITETAIL, Appellant. |
| Court | U.S. Court of Appeals — Eighth Circuit |
Donald R. Becker, Fargo, N.D., for appellant.
Dennis D. Fisher, Fargo, N.D., argued (Stephen D. Easton, on the brief), for appellee.
Before FAGG, Circuit Judge, HEANEY, Senior Circuit Judge, and BOWMAN, Circuit Judge.
This is a direct appeal of a criminal conviction and sentence. Emrolyn Kae Whitetail was indicted for the second degree murder of Robert McKay, her long-time, live-in boyfriend, in violation of 18 U.S.C. § 1111 (1988). During her trial she never denied that she killed McKay, but rather contended that, at the time of the killing, she was suffering from battered-woman syndrome, that McKay was beating her or was about to begin beating her, and that she stabbed him in self-defense. The jury rejected her claim of self-defense and found her guilty. She was sentenced to 108 months in prison to be followed by three years of supervised release.
On appeal 1 she contends that her conviction should be reversed because the District Court admitted into evidence testimony of her prior bad acts and her reputation for violence. She also contends that the District Court erroneously believed that it could not consider her battered-woman defense as a basis for departure from the sentencing range prescribed by the sentencing guidelines. We affirm her conviction, vacate her sentence, and remand for resentencing.
At approximately 6:00 a.m. on September 5, 1990, Emrolyn Whitetail stabbed Robert McKay with a butcher knife in the lower right side of his back. The stabbing occurred in the couple's home on the Devil's Lake Indian Reservation at Fort Totten, North Dakota, after the two had been drinking all night. After the police arrived, Whitetail told them that she and McKay had been fighting and that she had stabbed him because she was afraid he was going to beat her up. She also directed them to the location of the butcher knife. Shortly after being taken to the hospital, McKay died from the loss of blood resulting from his wounds. The physician to whom McKay was taken testified that it appeared that, after McKay was stabbed, the knife was removed partially and then thrust back into his body. There were no eyewitnesses to the stabbing or the events of the night preceding it.
At trial, to support her claim that she suffered from battered-woman syndrome, Whitetail produced several witnesses who testified that she had seemed afraid of McKay, that they had seen her with bruises, black eyes, and similar injuries, and that they had seen McKay physically abusing her. Her mother, Dorothy Whitetail, testified that she had seen McKay pulling her daughter's hair and that she had seen bruises on her daughter's face. Whitetail's sisters, Rose Whitetail, Claudette Williams, and Donna Whitetail, testified that on many occasions they had seen their sister with black eyes and bruises. In addition, Rose Whitetail testified that she once had witnessed McKay beating Emrolyn with a boot, and that on another occasion she had seen cuts on Emrolyn's head that appeared to have been made with the claw end of a hammer. Claudette Williams testified that she had witnessed a physical altercation between McKay and Emrolyn, although she did not know who initiated it, and that on another occasion she had seen Emrolyn with a broken nose. Donna Whitetail testified that Emrolyn had appeared to be afraid of McKay.
In addition, Emrolyn Whitetail produced two expert witnesses who testified with regard to battered-woman syndrome. According to these experts, this syndrome is brought about by subjecting a woman to continuous, severe, long-term abuse. A woman who experiences battered-woman syndrome, according to these experts, would feel trapped, desperate, isolated, ashamed, and hopeless, would have a low self-esteem, and would tend to be submissive and passive. Both experts concluded that Whitetail was suffering from the syndrome at the time she killed McKay.
Whitetail took the stand and testified with regard to a number of specific incidents in which McKay allegedly physically abused her. 2 She also testified that McKay had beaten her regularly and that he had done so on more occasions than she could count, and that she was afraid of him.
The government attacked Whitetail's defense during its cross-examination of Whitetail and her witnesses. For example, during the cross-examination of Donna Whitetail, the government managed to elicit testimony, over objection, that Emrolyn had been in a fight with Donna, had knocked the phone from Donna's hand, and had prevented Donna from calling their mother. Susan Patterson, one of Whitetail's expert witnesses, testified on cross-examination that a woman who was the aggressor in fights with her husband would not qualify as a battered woman. She also testified, over objection, that she was unaware Whitetail had threatened McKay with a knife less than a month before his death, and she admitted that such knowledge would be relevant in making a determination of whether Whitetail was suffering from battered-woman syndrome. Dr. Zimmerman, Whitetail's other expert witness, testified that he had based his conclusion that Whitetail was a battered woman upon medical records that included records of injuries she had received at the hands of her brother and sister. He also testified, over objection, that he was aware of a fight between Whitetail and McKay a few days before the killing in which Whitetail had threatened McKay with a knife. Finally, he testified over objection that it would be inconsistent for Whitetail to have been the aggressor in that knife incident if she was suffering from battered-woman syndrome.
The government also elicited unfavorable testimony from Emrolyn Whitetail as is evident in the following excerpt from her cross-examination:
Q. You like to fight, don't you?
A. Yes.
Q. In fact, you fight with your brothers and sisters, don't you?
A. Yes.
Q. In fact, you start some of those fights, don't you?
A. Well, they push their limit where I have to defend myself with them.
Q. And you defend yourself with a knife usually?
A. No, I don't. Not with them.
Q. How many fights do you think you have had over the last seven and a half years with people other than Robert McKay?
A. Quite a few.
Q. Would you say three a week?
A. No.
Q. You drink about three times a week, don't you?
A. Yes.
Q. You get mean when you drink, don't you?
A. Not all the time.
Q. But you have a reputation for being mean when you're drunk, isn't that right?
A. Yes. But not toward Robert.
Q. But you don't take anything from anybody when you're drinking, isn't that right?
A. Other people, yeah, they say things about me, then I--
Q. That gets you mad, doesn't it, when they say things about you?
A. Yes, they do.
....
Q. But it's not unusual for you to get into a fight if somebody says something about you and you take care of the situation, isn't that right?
A. Yes.
Transcript at 600-01, 604 (Testimony of Emrolyn Whitetail). This testimony was elicited without objection. Whitetail also testified on cross-examination that: her nose had been broken five times; her nose had been broken by people other than McKay; another man, with whom she had had a brief relationship, had broken her jaw; she had fought with her sister Donna Whitetail; she had fought with her sister Claudette Williams; she had kicked Brenda Whitetail in the eye because Emrolyn had caught her with McKay; she had punched a social worker in the mouth; and she had pushed McKay down when he was drunk causing him to hit his head on a coffee table. This testimony also was elicited without objection.
In addition, the government called several rebuttal witnesses. Sheila Thompson, the first rebuttal witness, testified that less than a week prior to McKay's death she had witnessed a fight between Whitetail and McKay in which Whitetail had obtained a knife from the kitchen and had threatened McKay with it. Thompson testified that she had intervened and had asked Whitetail for the knife and that Whitetail had responded by dropping the knife. Kercia McKay, McKay's niece, testified that approximately a week prior to McKay's death she witnessed a fight between Whitetail and McKay in which Whitetail retrieved a knife from the kitchen and returned to the fight with McKay, from which McKay emerged with a cut on his head. Deana McKay, McKay's sister, testified that Whitetail once had struck her. She also testified that she had witnessed the knife-wielding incident about which Sheila Thompson had testified and that Whitetail had a hot temper and was not afraid of anyone. Transcript at 658 (Testimony of Deana McKay). Julie Fasching, a social worker, testified that on one occasion Whitetail had attacked her, striking her once in the mouth before being subdued. She also testified that the opinion in the community was that Whitetail "was chemically dependent, had a reputation for violence and it could be directed at people when she was under the influence...." Transcript at 695-96 (Testimony of Julie Fasching). Whitetail concedes that she objected to none of this testimony.
Whitetail argues that the District Court committed reversible error by admitting into evidence testimony regarding her prior bad acts and her reputation for violence, which she contends was inadmissible under Rule 404 of the Federal Rules of Evidence. We disagree. At trial Whitetail made only five objections, arguably based upon Rule 404, with respect to all the testimony she now challenges. Thus, to the extent that her appeal is based upon the admission of evidence to which she never objected at trial, our standard of review is plain error. 3 See United States v. Roenigk, 810 F.2d 809, 815 (8th Cir.1987). Under this standard, we will not...
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