United States v. Cottier

• Decision Date: 16 November 2018
• Docket Number: No. 17-3690,17-3690
• Citation: 908 F.3d 1141
• Parties: UNITED STATES of America, Plaintiff - Appellee v. Calmer COTTIER, Defendant - Appellant
• Court: U.S. Court of Appeals — Eighth Circuit

908 F.3d 1141

UNITED STATES of America, Plaintiff - Appellee

v.Calmer COTTIER, Defendant - Appellant

No. 17-3690

United States Court of Appeals, Eighth Circuit.

Submitted: October 25, 2018

Filed: November 16, 2018

Eric D. Kelderman, Kathryn Nicole Rich, Assistant U.S. Attorneys, Megan Poppen, U.S. ATTORNEY'S OFFICE, Rapid City, SD, Kevin Koliner, Assistant U.S. Attorney, U.S. ATTORNEY'S OFFICE, District of South Dakota, Sioux Falls, SD, for Plaintiff-Appellee.

Calmer Cottier, Oklahoma City, OK, Pro Se.

Nathaniel F. Nelson, I, NELSON LAW OFFICE, Sturgis, SD, for Defendant-Appellant.

Before WOLLMAN, LOKEN, and ERICKSON, Circuit Judges.

ERICKSON, Circuit Judge.

In the early morning hours of July 12, 2015, Ferris Brings Plenty was murdered during a vicious group beating on the Pine Ridge Reservation in South Dakota. For his role in the beating, Appellant Calmer Cottier was charged with Second Degree Murder (or aiding and abetting the same), Conspiracy to Commit Assault, and Solicitation to Commit a Crime of Violence. A jury found Cottier guilty of the murder and conspiracy counts. Cottier was acquitted of the solicitation count. The district court¹ sentenced Cottier to 210 months’ imprisonment. Cottier raises five issues on appeal: (1) the sufficiency of the evidence on the second degree murder count, (2) the court’s instruction to the jury on the elements of second degree murder, (3) improper vouching for the credibility of witnesses by the prosecution, (4) the admission of testimony concerning a sexual encounter that took place in the hours leading up to the murder, and (5) the calculation of his criminal history. We affirm.

I. Background

"We recite the facts in the light most favorable to the jury’s verdict." United States v. Hemsher, 893 F.3d 525, 528 (8th Cir. 2018) (quoting United States v. Daniel, 887 F.3d 350, 353 (8th Cir. 2018) ). On July 12, 2015, Cottier, Steven Steele, Terry Goings III, and Billy Bob Bluebird were in Bluebird’s backyard in Pine Ridge, South Dakota. Some of the men were gang members, belonging to the Juggalos, a division of the Bloods. Aaron Little Bear and Fred Quiver, members of a competing gang, the Tre Tre Crips, were drinking in the adjacent Quiver backyard. Little Bear argued with Cottier, and the two groups exchanged gang-related slurs.

After the argument ended without a physical confrontation, Cottier and his group went to his grandmother Rose Cottier’s ("Rose") house. There they were joined by Cottier’s brothers Jerome Warrior and Albert Cottier ("Albert"). Angry that he got "punked out" when Little Bear argued with him and called him and his group names, Cottier suggested that the group go back to the Quiver residence to fight Little Bear.² As the men walked to the Quiver residence, they discussed weapons, Goings gave his machete to Steele, and Goings found what the members described as "a stick" or a "rake handle." The group split into two to bum-rush the Quivers—Steele, Bluebird, and Warrior on one side of the residence and Cottier, Goings, and Albert on the other side.

When they arrived at the Quiver residence around 3:00 a.m., they did not encounter Little Bear. Instead, Brings Plenty was sleeping in a tent in the backyard. When Brings Plenty emerged from the tent and tried running away, Cottier threw a cinder block at his head, which struck him in the face and caused him to stumble.³ Warrior tackled Brings Plenty to the ground. A vicious group beating ensued. Warrior and Cottier (and possibly Albert and Bluebird) kicked Brings Plenty several times while Goings hit him repeatedly with the stick and Steele struck him multiple times in the back of the head with the machete. Unsurprisingly, Brings Plenty died from his numerous blunt force trauma injuries.

II. Discussion

A. Sufficiency of the Evidence

We first address the issue of sufficiency of the evidence to sustain Cottier’s conviction for aiding and abetting second degree murder. We review the "sufficiency of the evidence de novo, viewing the evidence in the light most favorable to the government, with all reasonable inferences and credibility determinations made in support of the jury’s verdict." United States v. Kelly, 436 F.3d 992, 996 (8th Cir. 2006) (citing United States v. Dieken, 432 F.3d 906, 909–10 (8th Cir. 2006) ). We will overturn the verdict only if no reasonable jury could have found Cottier guilty beyond a reasonable doubt. United States v. Skoda, 705 F.3d 834, 839 (8th Cir. 2013) (citing United States v. Gray, 700 F.3d 377, 378 (8th Cir. 2012) ).

To convict Cottier, the jury had to find that: (1) he unlawfully killed Ferris Brings Plenty, or aided and abetted the killing; (2) he acted with malice aforethought; and (3) he is an Indian and the offense took place in Indian country. 18 U.S.C. §§ 1111 and 2. See also United States v. Lame, 716 F.2d 515, 518 (8th Cir. 1983) (listing the elements of second degree murder committed in Indian country). Malice may be shown "by evidence of conduct which is ‘reckless and wanton, and a gross deviation from a reasonable standard of care, of such a nature that [the factfinder] is warranted in inferring that defendant was aware of a serious risk of death or serious bodily harm.’ " United States v. French, 719 F.3d 1002, 1008 (8th Cir. 2013) (alteration in original) (quoting United States v. Black Elk, 579 F.2d 49, 51 (8th Cir. 1978) ). "An aiding and abetting conviction requires the government to prove a defendant took an affirmative act to further the underlying criminal offense, with the intent of facilitating the offense." United States v. Borders, 829 F.3d 558, 565 (8th Cir. 2016) (citing Rosemond v. United States, 572 U.S. 65, 71, 134 S.Ct. 1240, 188 L.Ed.2d 248 (2014) ).

Cottier contends that no reasonable factfinder could have found that Cottier threw a cinder block at Brings Plenty based on the testimony of Goings. Cottier argues that Goings’s testimony was not credible because his memory of the events was affected by his drunkenness and he testified pursuant to a cooperation agreement. "[W]e must resolve issues of credibility in favor of the verdict, and we decline to invade the province of the jury as [Cottier] would have us do." United States v. McCarthy, 97 F.3d 1562, 1571 (8th Cir. 1996) (first alteration in original) (quoting United States v. Fregoso, 60 F.3d 1314, 1323 (8th Cir. 1995) ). Goings’s story was not so "internally inconsistent or implausible on its face" that the jury was not entitled to credit his testimony. United States v. Mann, 701 F.3d 274, 298 (8th Cir. 2012) (quoting Moore v. Novak, 146 F.3d 531, 535 (8th Cir. 1998) ).

Even if we agreed that Goings’s testimony about the cinder block was not credible as a matter of law, the jury easily still had before it ample evidence to find Cottier guilty of aiding and abetting second degree murder. Every witness who was able to identify the individuals involved testified about Cottier’s active participation in the vicious group beating that killed Brings Plenty. Each witness recalled that after the group entered the Quiver yard with the intent to fight, Cottier repeatedly kicked Brings Plenty as others kicked Brings Plenty and struck him with a stick and machete repeatedly. As Cottier himself admitted at trial, it "wasn’t a fair fight." This evidence is more than sufficient to prove beyond a reasonable doubt that Brings Plenty was killed in Indian country; Cottier, an Indian, knew the assault of Brings Plenty was being committed and aided in its commission; and Cottier acted recklessly and with wanton disregard of human life.⁴

B. Aiding and Abetting Second-Degree Murder Instruction

Cottier also appeals the district court’s jury instruction number 4, which outlined the elements of second degree murder or aiding and abetting the same. "We review jury instructions for abuse of discretion, and ‘[i]n so doing, we do not consider portions of a jury instruction in isolation, but rather consider the instructions as a whole to determine if they fairly and adequately reflect the law applicable to the case.’ " United States v. Pierce, 479 F.3d 546, 549 (8th Cir. 2007) (alteration in original) (quoting United States v. Turner, 189 F.3d 712, 721 (8th Cir. 1999) ).

Cottier asserts that the instruction was erroneous and prejudiced him because "the jury was instructed to convict him of aiding and abetting second degree murder even if his intent was limited to that of an assault," which would violate circuit precedent. In Rosemond, 572 U.S. at 76, 134 S.Ct. 1240 (citations omitted), we explained:

[A] person aids and abets a crime when (in addition to taking the requisite act) he intends to facilitate that offense’s commission. An intent to advance some different or lesser offense is not, or at least not usually, sufficient: Instead, the intent must go to the specific and entire crime charged ....

Similarly, in United States v. Roan Eagle, 867 F.2d 436, 445 (8th Cir. 1989), we said, "To be guilty of aiding and abetting is to be guilty as if one were a principal of the underlying offense. Aiding and abetting is not a separate crime but rather is linked to the underlying offense and shares the requisite intent of that offense."

Contrary to Cottier’s assertion, however, the instruction did not allow the jury to convict him of aiding and abetting second degree murder by finding a mere intent to assault Brings Plenty. To convict Cottier of aiding and abetting the murder, the jury had to find that he "[a]cted willfully and with malice aforethought as those terms are referenced in element 2." The definition of "malice aforethought" in element two, which tracks circuit precedent verbatim, made clear that Cottier had to possess "an intent, at the time of a killing, willfully to take the life of a human being, or an intent willfully to act in callous and wanton disregard of the consequences to human life." As such, the instruction linked the intent required to the killing, not just the assault. The district court did not abuse its discretion in...