United States v. Lespier, CRIMINAL CASE NO. 2:10cr09

CourtUnited States District Courts. 4th Circuit. Western District of North Carolina
Writing for the CourtMartin Reidinger
Decision Date27 March 2012
Docket NumberCRIMINAL CASE NO. 2:10cr09




Signed: March 27, 2012


THIS MATTER is before the Court on the Defendant's Motion for a Judgment of Acquittal [Doc. 87].


On December 7, 2010, the Defendant was charged in a two count Superseding Bill of Indictment with first degree murder, in violation of 18 U.S.C. §1111, and with using a firearm during a crime of violence which caused the death of another person, in violation of 18 U.S.C. §924(j)(1). [Doc. 20]. On June 8, 2011, after a six day trial, the Defendant was found guilty by jury verdict of both counts. [Doc. 87]. On June 20, 2011, he timely moved for a judgment on acquittal alleging there was insufficient evidence to sustain the convictions. [Doc. 87-1].

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When a motion for a judgment of acquittal pursuant to Federal Rule of Criminal Procedure 29 is "based on insufficiency of the evidence, the verdict must be sustained if there is substantial evidence, taking the view most favorable to the Government, to support it." United States v. Gallimore, 247 F.3d 134, 136 (4th Cir. 2001) (internal quotation and citation omitted).

In reviewing the sufficiency of the evidence following a conviction, the court is to construe the evidence in the light most favorable to the government, assuming its credibility, and drawing all favorable inferences from it, and will sustain the jury's verdict if any rational trier of fact could have found the essential elements of the crime charged beyond a reasonable doubt. If there is substantial evidence to support the verdict, after viewing all of the evidence and the inferences therefrom in the light most favorable to the Government, the court must [sustain it]. Furthermore, this court cannot make [its] own credibility determinations but must assume that the jury resolved all contradictions in testimony in favor of the Government.

United States v. Penniegraft, 641 F.3d 566, 571-72 (4th Cir.), cert. denied __ U.S. ___, 132 S.Ct. 564, 181 L.Ed.2d 407 (2011) (internal quotations and citations omitted; emphasis in original). Moreover, in determining whether the evidence is substantial, this Court does not weigh it. United States v. Combs, 26 F. App'x. 198, 201 (4th Cir. 2002) (citing United States v. Arrington, 719 F.2d 701, 704 (4th Cir.), cert. denied 465 U.S. 1028, 104 S.Ct. 1289, 79 L.Ed.2d 691 (1984)).

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The Defendant contends that the evidence presented by the Government is insufficient to establish each of the elements of Count One of the Superseding Bill of Indictment, first degree murder in violation of 18 U.S.C. §§1111 & 1153.1 The first degree murder statute, 18 U.S.C. §1111, provides that any killing which is done with malice aforethought, willfulness, deliberateness, maliciousness and premeditation is murder in the first degree. United States v. Medina-Garcia, 226 F. App'x. 281 (4th Cir.), cert. denied 552 U.S. 933, 128 S.Ct. 327, 169 L.Ed.2d 230 (2007) (stating elements of first degree murder). Any other murder committed with malice aforethought is murder in the second degree.2 Id. The Government in this case charged the Defendant with unlawfully killing another human being with malice aforethought, willfully, deliberately, maliciously and with premeditation. [Doc. 20]. In other words, he was charged with first degree murder.

The Defendant first claims that the Government failed to produce evidence of the first element, that he actually killed the victim, as opposed to

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evidence that an accidental shooting occurred. In support of that position, defense counsel note that no fingerprints were found on the weapon, no one saw the Defendant with the gun in his hand and "all the evidence introduced indicated that Ms. Smith [the victim] was firing the weapon at the Defendant and the gun discharged during the course of the struggle." [Doc. 87-1 at 4]. Counsel further argues that there is no evidence that the Defendant shot the victim "execution style;" that is, from an angle to the back of her head. [Id.].

Defendant's argument overlooks the fact that in considering a Rule 29 motion, courts consider both circumstantial and direct evidence, drawing all reasonable inferences from both types of evidence in the Government's favor. United States v. Cruz, 439 F. App'x. 209, 213-14 (4th Cir. 2011) (citing United States v. Harvey, 532 F.3d 326, 333 (4th Cir. 2008)). Only when a prosecutor's failure is "clear" can a court reverse a conviction on the ground of insufficient evidence. Id. (citation omitted). In this case, the medical examiner testified that the victim could not have been holding the gun at the time of discharge given the angle of the shot. Other than the victim and the Defendant, the only person present in the house at the time of the shooting was a sleeping child. Thus a reasonable inference from the circumstantial evidence is that the Defendant must have been holding the gun. This is

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evidence which the jury considered and, obviously, believed. United States v. Poole, ___ F. App'x. ___, 2011 WL 5008522 (4th Cir. 2011) (although the defendant offered alternative explanations for what occurred, "we need only find that the jury could have reasonably credited the government's theory" based on circumstantial evidence); United States v. Foster, 507 F.3d 233, 245-46 (4th Cir.), cert. denied 552 U.S. 1274, 128 S.Ct. 1690, 170 L.Ed.2d 383 (2008) ("this circumstantial evidence, taken in totality and viewed in the light most favorable to the government, is sufficient to sustain the jury's finding that Taylor murdered McManus."). "[C]ircumstantial evidence is not inherently less valuable or less probative than direct evidence." United States v. Williams, 445 F.3d 724, 731 (4th Cir.), cert. denied 549 U.S. 933, 127 S.Ct. 314, 166 L.Ed.2d 236 (2006) (citations omitted). "[I]ndeed, circumstantial evidence alone may support a guilty verdict," including a verdict of guilty of murder in the first degree. United States v. Espaillet, 380 F.3d 713, 719 (2nd Cir. 2004); United States v. Russell, 971 F.2d 1098, 1110 n. 24 (4th Cir.), cert. denied 506 U.S. 1066, 113 S.Ct. 1013, 122 L.Ed.2d 161 (1993).

The Defendant's argument is, in essence, that the jury's credibility determinations and weighing of this evidence was wrong. This Court, however, in ruling on the motion, does not make either credibility

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determinations or weigh the evidence. Penniegraft, 641 F.3d at 571-72 ; Combs, 26 F. App'x. at 201. The evidence produced by the Government at trial was sufficient for a rational jury to find beyond a reasonable doubt that the Defendant killed the victim.

The Defendant's next argument is that the Government "failed to produce any evidence, let alone substantial evidence" of malice aforethought, deliberateness or specific intent. [Doc. 87-1 at 6] (emphasis in original). The evidence, according to defense counsel, shows only that (1) the victim became angry with the Defendant because he had taken a pill from her; (2) because she was angry, she shot the gun at a point above his head; (3) the Defendant tried to take the gun away from her; and (4) while they struggled for it, it discharged. None of this evidence, the Defendant argues, is sufficient to show the elements of malice aforethought, deliberateness and specific intent required for first degree murder.

Malice aforethought is not defined in 18 U.S.C. §1111. United States v. Medina-Garcia, 226 F. App'x. at 286 (citation omitted). Here, the jury was instructed, without objection from the Defendant, that malice aforethought means "to kill another person deliberately and intentionally or to act with

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callous and wanton disregard for human life."3 [Doc. 96 at 4]. "Malice aforethought ... can be proven by circumstantial evidence." Medina-Garcia, 226 F. App'x. at 286. "Whether malice is present in a given case must be inferred by the jury from the whole facts and circumstances surrounding the killing." United States v. Williams, 342 F.3d 350, 356-57 (4th Cir.), cert. denied 540 U.S. 1169, 124 S.Ct. 1189, 157 L.Ed.2d 1219 (2004). In addition to the definition of malice aforethought, the jury here was also instructed that the term "malice" means "that condition of mind which prompts a person to take the life of another intentionally or to intentionally inflict serious bodily harm which proximately results in the death of the victim without just cause, excuse or justification." [Doc. 96 at 6].

A rational jury could have inferred from the angle of the gunshot into the victim's head that the shot was the result of deliberate and intentional conduct

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on the Defendant's part even if it occurred during a struggle. Williams, supra.; United States v. Rogers, ___ F. App'x. ___, 2011 WL 6062051 (4th Cir. 2011). If the jury disbelieved the Defendant's claim of a struggle and accidental shooting, which a rational jury could do, it could reasonably infer from the evidence presented that the Defendant's actions were done with malice aforethought, deliberately and intentionally. Id. As noted below, there was evidence presented during the trial that the Defendant and the victim had a sometimes physically abusive relationship and that he had previously spoken of...

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