United States v. Sago
| Docket Number | 22-5011 |
| Decision Date | 24 July 2023 |
| Parties | UNITED STATES OF AMERICA, Plaintiff - Appellee, v. KYLE QUENTIN SAGO, a/k/a Kyle Sago, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Tenth Circuit |
Appeal from the United States District Court for the Northern District of Oklahoma (D.C. No. 4:20-CR-00094-GKF-1).
Howard A. Pincus, Assistant Federal Public Defender (Virginia L Grady, Federal Public Defender, with him on the briefs) Office of the Federal Public Defender, Denver, Colorado, for Defendant-Appellant.
Leena Alam, Assistant United States Attorney (Clinton J. Johnson United States Attorney, and Gina Gilmore, Assistant United States Attorney, on the brief), Office of the United States Attorney, Tulsa, Oklahoma, for Plaintiff-Appellee.
Before HARTZ, SEYMOUR, and MATHESON, Circuit Judges.
Defendant Kyle Sago appeals his convictions for first-degree murder in Indian country and causing death by use of a firearm during and in relation to a crime of violence (namely, first- or second-degree murder). The jury was instructed on first- degree murder, second-degree murder, and self-defense. On appeal Mr. Sago argues that the district court plainly erred in providing model jury instructions on first- and second-degree murder that inadequately defined the required element of malice. His specific complaint is that the instructions omitted the mitigation defense commonly referred to as "imperfect self-defense." That is, he claims the instructions were defective in that they failed to inform the jury that it could not find that Mr. Sago acted with malice unless it found that he was not acting in the sincere belief (even if the belief was unreasonable) that the use of deadly force was necessary.
Exercising jurisdiction under 28 U.S.C. § 1291, we affirm Mr. Sago's convictions. An instruction that a mitigating circumstance negates the malice element of first- and second-degree murder must be accompanied by a lesser-included-offense instruction informing the jury of the offense on which it could convict the defendant in light of the mitigating circumstance.[1] And it was not error-or at least not obvious error-for the district court to decline to instruct on the mitigating circumstance when Mr. Sago did not request the relevant lesser-included-offense instruction for involuntary manslaughter.
Mr. Sago met his victim, Daniel Morgan, in the early 2000s when Mr. Sago was about 14 years old and Mr. Morgan was an adult. By the time Mr. Sago was 15, he had lost both parents, left school, and needed a place to live. Mr. Morgan invited Mr. Sago to come live with him. After Mr. Sago moved out, he and Mr. Morgan remained friendly and occasionally worked together. But by July 2020, when Mr. Sago was 30, the two men had not seen each other for three or four years.
On the morning of July 25, 2020, Mr. Sago decided to send Mr. Morgan a Facebook message to see if they might reconnect. Mr. Morgan and his girlfriend Sharlene Murphy were staying at the Tulsa home of Eugene Lowe, a friend whom Mr. Morgan was helping with some electrical work. In response to the message, Mr. Morgan invited Mr. Sago over to Mr. Lowe's home. Mr. Sago drove the 30 miles to Tulsa and arrived at the house around noon. When Mr. Sago arrived, Mr. Morgan got into Mr. Sago's car; they talked and then drove around the neighborhood. Mr. Sago showed Mr. Morgan a handgun he had acquired. Mr. Morgan then asked Mr. Sago if he wanted to smoke a bowl of methamphetamine. The two men went inside the house to smoke. Mr. Morgan introduced Mr. Sago to Ms. Murphy. After a brief but-by all accounts-friendly visit of 10 or 15 minutes, Mr. Sago and Mr. Morgan went back outside. They had a brief discussion about Mr. Morgan helping Mr. Sago find a lawnmower to buy. The men hugged and Mr. Sago left, as he described it, "on good terms." R., Vol. III at 294.
After leaving Mr. Lowe's house, Mr. Sago ran a few errands before going home. For reasons not appearing in the record, Mr. Sago then called Mr. Morgan and made plans to return to the house in Tulsa. But after they hung up, Mr. Sago had second thoughts about whether he should make the trip; money for gas was tight and Mr. Sago was unsure whether Mr. Morgan wanted him around. Mr. Sago attempted to call Mr. Morgan several times to talk about whether he should visit or not, but Mr. Morgan had fallen asleep and did not answer his phone. At about 5:30 p.m. Mr. Sago left his home to return to Tulsa. After pulling up in front of Mr. Lowe's house, he placed several more calls to Mr. Morgan, all of which went unanswered. Mr. Sago testified at trial that, given the trouble and expense he had taken to return to the house, he felt frustrated that Mr. Morgan would not answer the phone or come outside.
As Mr. Sago parked in front of the house, Ms. Murphy was returning from a quick trip to a convenience store. Upon entering the house she noticed that Mr. Morgan's cell phone was ringing repeatedly and, picking it up, saw that the calls were coming from Mr. Sago. Recognizing the car outside as Mr. Sago's, Ms. Murphy went out to speak to him. Ms. Murphy told him that Mr. Morgan was asleep, had been up working all night, and that she was not going to wake him. Ms. Murphy testified that Mr. Sago started "arguing" with her and that as he instructed her to get Mr. Morgan so they could discuss "business," his "demeanor . . . changed." Id. at 118. (At trial Mr. Sago admitted that he was annoyed during the conversation with Ms. Murphy.) Ms. Murphy went inside and woke Mr. Morgan, telling him Mr. Sago was outside and demanding that Mr. Morgan come out to talk. She offered to tell Mr. Sago to leave but Mr. Morgan said he would go out to see him. Ms. Murphy testified that Mr. Morgan was happy and smiling when he stepped out the front door.
Mr. Sago testified that while Ms. Murphy was inside waking Mr. Morgan, he started to feel worried that he was making Mr. Morgan angry and wondered if he should leave. Before he could decide what to do, he saw Mr. Morgan exit the house. Contrary to Ms. Murphy's testimony, Mr. Sago said that Mr. Morgan seemed mad, throwing his cell phone down on the porch and advancing towards Mr. Sago's vehicle. Mr. Sago testified that because he was frightened and believed Mr. Morgan might be armed, he drew his own handgun and fired several shots. One bullet struck Mr. Morgan in the chest. Mr. Morgan fell to the ground but then got up and ran away from Mr. Sago's car and toward the corner of the house as though heading for the backyard. Mr. Sago pulled forward in his car and then fired additional shots, three of which hit Mr. Morgan in the back as he fled. Mr. Morgan died at the scene.
Mr. Sago was indicted in the United States District Court for the Northern District of Oklahoma on one count of first-degree murder in Indian country, two counts of possession of ammunition by a convicted felon, and one count of causing death by using a firearm in commission of a crime of violence. The possible crimes of violence alleged in the indictment were first- and second-degree murder. Mr. Sago and the government entered into a plea agreement under which he would plead guilty to second-degree murder and be sentenced to 300 months in prison. Although the prosecutor told the court that he thought the most likely verdict would be second-degree murder, the district court rejected the plea agreement.
In September 2021 Mr. Sago's case went to trial. Before trial the government had submitted-with defense counsel's agreement-proposed jury instructions on first-degree and second-degree murder. No self-defense instruction was proposed. Defense counsel's opening statement identified premeditation as the main dispute in the case, telling the jury that "the issue for you in this trial is going to be whether or not it was a first-degree murder versus a second-degree murder." Id. at 50.
During a bench conference on the last day of trial, however, the district court raised the issue of self-defense in light of Mr. Sago's testimony. Defense counsel expressed skepticism that a self-defense instruction was needed, telling the court that "[l]egally I'm not sure that it applies" and "[m]y argument would still not necessarily be that [Mr. Sago acted in self-defense]," but saying that the instruction would be "a safety precaution." Id. at 314. The district court said it would instruct the jury on self-defense. The judge's law clerk asked if there would be an additional lesser-included-offense instruction; the judge replied in the negative because "[i]t's got to be requested." Id. at 316. The court had two more conferences with counsel about the instructions, but defense counsel did not request any further lesser-included-offense instruction.
The court read the jury the Tenth Circuit pattern jury instructions on first- and second-degree murder and on self-defense. The instruction on first-degree murder set forth the five elements of the offense:
R., Vol. I at 77. The instruction on second-degree murder included the same elements except it omitted the requirement that the killing be premeditated. Both instructions contained the following definition of malice aforethought:
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