United States v. David Scout ( 1997 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
___________
No. 96-3307
___________
United States of America, *
*
Appellee, *
* Appeal from the United States
v. * District Court for the
* District of South Dakota.
David Scout, also known as *
David White Face, *
*
Appellant. *
___________
Submitted: February 11, 1997
Filed: May 1, 1997
___________
Before MAGILL, BEAM, and LOKEN, Circuit Judges.
___________
MAGILL, Circuit Judge.
A jury convicted David Scout, who is also known as David White Face,
of assaulting a federal officer without a weapon, in violation of 18 U.S.C.
§ 111(a)(1) (1994).1 The district court2
1
Scout was originally indicted on a charge of assaulting a
federal officer with a dangerous weapon under 18 U.S.C. § 111(a)(1)
(1994), which would have carried a maximum sentence of ten years
imprisonment. See 18 U.S.C. § 111(b) (1994). Scout was convicted
for the lesser included charge of assault without a weapon, which
allows a maximum three-year sentence. See 18 U.S.C. § 111(a)
(1994).
2
The Honorable Richard H. Battey, United States District Judge
for the District of South Dakota.
sentenced Scout to fourteen months imprisonment. At trial Scout maintained
that he had no memory of the alleged assault because of an alcohol-induced
black-out. On appeal, Scout contends that the district court erred in (1)
refusing to give a requested jury instruction on self-defense; (2) refusing
to allow a psychologist to testify that Scout had a peaceful personality;
and (3) refusing to change a jury instruction regarding character evidence.
We affirm.
I.
On August 15, 1995, Scout, his brother Manuel Scout, and their
friend Anthony Brave Heart gathered at Scout's and Manuel's home in the
Evergreen Housing complex on the Pine Ridge Indian Reservation in South
Dakota. The group consumed two half-gallons of vodka and a six-pack of
malt liquor. Late that evening Scout, Manuel, and Brave Heart left Scout's
home to walk to a friend's house nearby.
Tribal law prohibits public and private intoxication on the
reservation. See Trial Tr. at 28 (testimony of Paul Rooks, Chief of Police
of the Oglala Tribal Public Safety Commission, discussing Resolution 88-
12). Oglala Sioux Tribe Public Safety Commission Officers Lloyd Bianas and
John Attack Him received information on August 15 that Brave Heart and two
others were intoxicated and causing a disturbance in the Evergreen Housing
complex. After stopping at the home of Nathan Elk, a police officer who
lived in the Evergreen Housing complex, Officers Bianas and Attack Him saw
Brave Heart, Manuel, and Scout walking through the housing complex.
Officers Bianas and Attack Him approached Brave Heart, Manuel, and
Scout. The three men fled, and the officers pursued and
-2-
apprehended them. Officer Attack Him testified that he first apprehended
Manuel, who was "pretty intoxicated" and struggled against the officer.
See Trial Tr. at 41. After placing Manuel in the back of the police car,
Officer Attack Him drove the car to find the other suspects.
Officer Attack Him soon found Officer Bianas, who had overtaken Brave
Heart and Scout. When Officer Attack Him arrived, Officer Bianas had
already subdued Brave Heart by spraying him with mace and handcuffing him.
Officer Bianas also had Scout on the ground in an arm-lock. Officer Attack
Him placed Brave Heart in the back of the police car and then assisted
Officer Bianas in securing Scout.
After the officers placed Scout in the police car, Officer Bianas
stated that he had been hurt. Officer Attack Him noticed that Officer
Bianas's shirt had been torn and that he had a scrape on his forearm. Upon
searching the area, the officers discovered on the ground a seven-inch long
utensil described as a fondue fork.
Officer Bianas testified at trial that he apprehended Brave Heart
first, after pursuing him for a quarter of a mile. Brave Heart resisted
arrest, and swung his fists at Officer Bianas. Officer Bianas maced Brave
Heart, forced him to the ground, handcuffed him, and placed him against the
hood of a nearby car.
Officer Bianas then looked for Scout. Officer Bianas testified that
he found Scout hiding in some weeds, and that
I walked up to [Scout], told him he was under arrest. He just
come at me, like, you know, like he was going to jump on me;
and when I grabbed his arm, felt like I got a scratch, you
know, something scratched me, so I jumped back and maced him
and he come at me again.
-3-
Trial Tr. at 69. Officer Bianas then forced Scout to the ground. After
Scout was handcuffed, Officer Attack Him helped Officer Bianas place Scout
in the police car.
Officer Bianas noticed "a sharp pain on the lower left side of the
rib cage area," id. at 71, and a scratch on his left wrist. Officer
Bianas's uniform shirt was torn and his undershirt was scratched. Officer
Bianas and Officer Attack Him discovered the fondue fork in the area where
Officer Bianas had apprehended Scout. Officer Bianas sought medical
attention for his scratches, but had no serious injuries.
A day after the arrests, Manuel Scout signed a statement describing
the events of the previous night. Manuel, Scout's brother, asserted that
he had previously seen the fondue fork discovered at the arrest site and
that "we have these at our house. Mom uses those to cook, maybe to fry a
hot dog. . . . I don't know what [David] needed it for. We were just going
for a walk." Trial Tr. at 120 (question to Manuel Scout, quoting Ex. 9).3
Although Manuel indicated that Scout's left eye was bleeding and shut
as Scout was brought to the police car, Manuel gave no other indication of
police abuse in his signed statement. At trial, however, Manuel testified
that he saw the officers beat Brave Heart by striking his head against the
police car, and that the officers maced Scout and Brave Heart while they
were handcuffed in the back of the police car.
3
David Scout testified at trial that the fondue fork was used
to jimmy open the door to Manuel's room because the key to that
room was missing. See Trial Tr. at 150.
-4-
Brave Heart signed a statement the day after his arrest asserting
that his head had been struck against a police car twice by Officer Attack
Him. At trial, Brave Heart testified that Officer Bianas arrested him "and
started banging my head off the hood, I would estimate probably three to
four times." Trial Tr. at 128. Although Brave Heart stated that he "got
a broken nose and I should say two black eyes and a cracked chin," id. at
129, he never received medical treatment, and "let [his injuries] heal on
its own." Id. at 134. Brave Heart also testified that he was maced while
in the back of the police car, and that he saw Officer Bianas's leg "going
up to" Scout's face when Scout was "going down to the ground . . . ." Id.
at 129. Both Officers Bianas and Attack Him denied having used unnecessary
force.
Scout testified that he had virtually no memory of the arrest because
of an alcohol-induced black-out. Scout stated that he "blanked out" while
listening to music in his home, see Trial Tr. at 147, and that the next
thing that he remembered was that he "was outside walking by Nathan Elk's
driveway, I heard someone say, 'the cops.' And then I took off." Id.Scout further testified that he did not learn that Officer Bianas was
among the police officers pursuing him until the next day, see id. at 153-
54,4 and that he
4
Scout provided the following testimony at trial:
Question by prosecutor: You didn't know it was Lloyd
[Bianas] and John [A]ttack [H]im?
Answer by Scout: No.
Q. When did you find out it was Lloyd Bianas?
A. The next day.
Q. So you weren't running because you were afraid of
Lloyd Bianas, because you didn't know it was Lloyd Bianas
until the next day?
. . .
A. Yes.
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had no memory of his alleged assault on Officer Bianas.
Scout complained of four injuries that he allegedly received during
his arrest--including a swollen cheek, a bump on the back of his head, a
cut on his forehead, and a shut eye--and testified that he "assumed" that
the officers kicked him four times. Id. at 148. Scout sought medical
treatment and received drops for his eye. Scout also testified that he had
been arrested by Officer Bianas in the past, and that during a previous
arrest Officer Bianas had slapped him with the back of his hand twice
because Scout asked why he was being arrested. See Trial Tr. at 143.
Scout was indicted on a charge of assaulting a federal officer with
a weapon, in violation of 18 U.S.C. § 111(a)(1). Scout attempted to pursue
a defense of self-defense at trial. During the trial, Scout’s attorney
elicited testimony from two community members--both of whom were related
to Scout--that Officer Bianas had a reputation for violence. See Trial Tr.
at 94 (testimony of Aldeen Mary Steele Yellow Boy); id. at 99 (testimony
of Myrna Young Bear). Scout also asserted that he had heard of Officer
Bianas beating other prisoners. See id. at 144. The district court did
not allow a psychologist who interviewed Scout to testify that Scout had
a peaceful personality and would not have started a fight with Officer
Bianas.
Q. You don't know what happened out there, do you?
A. No.
Trial Tr. at 153-54.
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Scout submitted a proposed jury instruction to the district court
which stated:
If a person reasonably believes that force is necessary to
protect himself from what he reasonably believes to be unlawful
physical harm about to be inflicted by another and uses such
force, then he acted in self[-]defense. In order to convict
the Defendant of any charge, you must find beyond a reasonable
doubt that the Defendant was not acting in self[-]defense
during the incident in question.
Appellant’s Add. at 10. The district court did not issue this instruction
to the jury, concluding that the evidence submitted did not support a self-
defense instruction.
After a witness expressed her opinion that Officer Bianas had a
violent reputation, a jury member sent the district court a note which
asked, "Have the witnesses seen Mr. Bianas being violent or only heard
reports from others? What is the source of his reputation for violence?"
Trial Tr. at 186-87 (quoting note from juror). The district court notified
the parties about this note, and Scout submitted a proposed jury
instruction to clarify Federal Rule of Evidence 405's limitation of
admissible character evidence. The proposed instruction stated:
Generally, evidence of a person's character or a trait of
character is not admissible at trial for the purpose of proving
action in conformity therewith on a particular occasion.
However, evidence of a pertinent trait of character offered by
an accused and evidence of a pertinent trait of character of
the alleged victim of the crime charged offered by an accused,
and evidence by the prosecution to rebut such evidence offered
by an accused is admissible at trial for the purpose of proving
action in conformity therewith on a particular occasion.
When the accused seeks to offer evidence of character,
the proof is limited only to testimony as to reputation or by
testimony in the form of opinion. On
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cross-examination, inquiry is allowable into relevant specific
instances of conduct.
Appellant's Add. at 12. The district court declined to give the proposed
instruction, and instead provided the following instruction:
You are instructed that evidence of the community
reputation of Lloyd Bianas for violence has been received
through the opinion of certain witnesses. This evidence does
not relate to specific instances of conduct but relates to the
witnesses['] knowledge of such reputation. You may give the
evidence such weight as you think it deserves considering the
testimony presented including the government's cross-
examination.
Appellee's Br. at 9.
The jury convicted Scout of the lesser included charge of assaulting
a federal officer without a weapon, in violation of 18 U.S.C. § 111. Scout
now appeals.
II.
Scout argues that the district court erred in refusing to give a
proposed jury instruction on a defense of self-defense. We disagree.
"We generally review the district court's refusal to give the
defendant's requested jury instructions only for an abuse of discretion."
United States v. Long Crow, 37 F.3d 1319, 1323 (8th Cir. 1994), cert.
denied, 115 S. Ct. 1167 (1995). However, "whether there is sufficient
evidence to submit an affirmative defense [instruction] . . . to the jury
is a question of law for the court," id., which we review de novo. Id.-8-
We "have long held that a defendant is entitled to an instruction on
his theory of the case if there is evidence to support it and a proper
request has been entered." Id. (quotations and citations omitted). The
burden on the defense to demonstrate that there is sufficient evidence to
warrant an instruction is not onerous; indeed,
[t]he defendant does not have to testify or even offer any
evidence; the basis for the defendant's theory may derive from
the testimony of government witnesses on direct or cross-
examination. Finally, the evidence to support a theory of
defense need not be overwhelming; a defendant is entitled to an
instruction on a theory of defense even though the evidentiary
basis for that theory is weak, inconsistent, or of doubtful
credibility.
Closs v. Leapley, 18 F.3d 574, 580 (8th Cir. 1994) (quotations and
citations omitted).
Despite this liberal standard, however, a defendant still has the
burden of identifying some evidence to support his theory. "[T]he district
court is not required to put the case to the jury on a basis that
essentially indulges and even encourages speculations." United States v.
Branch, 91 F.3d 699, 712 (5th Cir. 1996)(quotations and citations omitted)
(affirming district court's denial of self-defense instruction), petition
for cert. filed, 65 U.S.L.W. 3468 (U.S. Dec. 19, 1996) (No. 96-989). As
we explained in Hall v. United States, 46 F.3d 855 (8th Cir. 1995):
A self-defense instruction must be given if there is evidence
upon which the jury could rationally sustain the defense. A
mere scintilla of evidence, however, is insufficient to require
the instruction. To sustain the defense, the jury would have
to find that [the defendant] used such force that he reasonably
believed was necessary to protect himself from unlawful
physical harm about to be inflicted upon him by another. Nor
is the defendant entitled to an instruction when the evidence
does not
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support it.
Id. at 857 (affirming district court's denial of proposed self-defense
instruction) (citations, quotations, and alterations omitted) (emphasis
added). See also United States v. Alvarez, 755 F.2d 830, 842 n.12 (11th
Cir. 1985) ("[S]elf-defense is an affirmative defense on which the
defendant bears the burden of production. In a federal prosecution,
however, once the defendant has met the burden of production, the
government must satisfy the burden of persuasion and must negate self-
defense beyond a reasonable doubt." (citation omitted)).
Scout has pointed to no direct evidence that he assaulted Officer
Bianas in self-defense. Officer Bianas testified that Scout's attack was
unprovoked, Scout testified that he cannot remember what took place after
he ran from the police, and no other witnesses testified that they saw
Scout's attack on Officer Bianas. Scout instead relies on evidence that
Officer Bianas had a violent reputation, that Scout had a peaceful
reputation, and that Scout was injured during his arrest. Based on this
evidence, Scout asserts that, when he was arrested, Scout
did not get up when approached by [Officer Bianas], that
[Officer Bianas] then started to kick the Defendant about his
head as [Scout] lay on the ground and that if the Defendant
acted aggressively towards [Officer Bianas] it was in response
to being kicked about his head.
Reply Br. at 3-4.
Scout's scenario is founded on sheer speculation. There was no
medical testimony that Scout's alleged head injuries were caused by Scout’s
being kicked. Instead, all the evidence indicates that Scout received the
injuries when being taken to the ground after
-10-
his assault on Officer Bianas. See Trial Tr. at 69-70 (Question by
prosecutor: "Did you take [Scout] down hard enough to cause that apparent
injury by his cheek and eye?" Answer by Officer Bianas: "Yes, I did. I
took him down hard."); id. at 129 (testimony of Brave Heart describing
Officer Bianas's leg "going up" into Scout's face as Scout "was going down
to the ground . . . ."). Scout's assumption that he had been kicked was
not evidence, but rather was mere conjecture. Officer Bianas's alleged
reputation for violence could have had no effect on Scout's state of mind
at the time of Scout's assault on Officer Bianas, because Scout testified
that he did not know which police officer was apprehending him.
Scout also relied on testimony at trial that he had a reputation for
passivity. While this evidence may have lent support to an otherwise
properly-founded theory of self-defense,5 we do not believe that this
reputation evidence, standing alone, was sufficient to mandate a jury
instruction on self-defense. See Branch, 91 F.3d at 712 ("[W]hile a
particular piece of evidence standing alone may support inferences that
warrant an instruction, those inferences may evaporate after reviewing the
entire record."); cf. United States ex rel. Rooney v. Housewright, 568 F.2d
516, 519-20 (7th Cir. 1977) ("There is not a shred of evidence to suggest
that what happened was to any degree in self-defense, regardless of what
a bad character the decedent may have been known to be. From the record
it appears that the petitioner, for his own reasons, calmly and
deliberately went about the business of killing [the victim]. The
petitioner's own testimony puts petitioner in the
5
By Scout's own testimony, at the time of his assault on
Officer Bianas, Scout was so intoxicated that he could not even
remember what had occurred. In light of Scout's altered state of
mind at the time of the events in issue, it is questionable whether
a reasonable jury would have placed any value on Scout's general
reputation for passivity.
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role of an armed aggressor who first shot, without sufficient provocation,
a fleeing, apparently unarmed man, and then again charged at him firing to
complete the assault, intending to finish him off by using the pistol, a
substantial weapon, as a club if need be. That being so, the decedent's
reputation and petitioner's knowledge of it were not relevant.").6
It is not the purpose of a jury instruction to invite jury
speculation of the facts, see Branch, 91 F.3d at 712 ("[T]he district court
is not required to put the case to the jury on a basis that essentially
indulges and even encourages speculations." (quotations and citations
omitted)), or nullification of the law. See United States v. Drefke, 707
F.2d 978, 982 (8th Cir. 1983) (per curiam) ("[F]ederal courts have
uniformly recognized the right and duty of the judge to instruct the jury
on the law and the jury's obligation to apply the law to the facts, and
that nullification instructions should not be allowed."). Scout has
pointed to no evidence which could have led any rational jury to find that
Scout assaulted Officer Bianas in self-defense. In the absence of relevant
evidence, a self-defense instruction in this case would have served no
legitimate purpose. Accordingly, the district court did not err in
refusing to issue a jury instruction on self-defense.
6
Brave Heart's and Manuel's testimony that Officers Bianas and
Attack Him maced and beat Brave Heart and Scout after they had been
arrested and handcuffed is, of course, disturbing. If the
testimony is believed--and we express no opinion on the credibility
of this evidence--it might well support disciplinary action or
civil or criminal liability against the officers. This testimony
does not, however, shed any light on Scout's actions prior to his
restraint, nor to his motivations and state of mind during his
assault on Officer Bianas. At best, this evidence suggests that
Officer Bianas engaged in retributional violence against Scout
following Scout's initial assault; but this alleged post hoc
aggression cannot transform Scout's initial assault into an act of
self-defense.
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III.
Scout next contends that the district court erred in refusing to
allow a psychologist to testify that Scout had a peaceful personality and
that Scout would not have started a fight. "Expert testimony is admissible
only when the expert's specialized knowledge will help the jury understand
the evidence or determine a fact in issue." United States v. Nunn, 940
F.2d 1148, 1149 (8th Cir. 1991). Here, the psychologist's testimony would
have done no more than bolster Scout's contention that Scout was normally
a peaceful person. As we have discussed above, this contention was
insufficient to warrant a jury instruction on self-defense. Because the
psychologist's testimony would not have shed light on a fact at issue in
the trial, the district court did not err in disallowing the psychologist's
testimony. See id. at 1149-50 ("The psychologist's testimony would have
shed no light on the elements of [the defendant's affirmative] defense.
Thus, the district court did not abuse its discretion in excluding the
testimony.").
IV.
Finally, Scout contends that the district court erred in refusing to
issue Scout's requested jury instruction regarding the witnesses' testimony
of Officer Bianas's reputation. The instruction given by the district
court correctly stated the law regarding character evidence, see Fed. R.
Evid. 405(a), while Scout's requested instruction placed an undue emphasis
on the prosecutor's ability to elicit specific acts testimony on cross-
examination. We do not believe that the district court abused its
discretion in instructing the jury on character evidence. See United
States v. Dreamer, 88 F.3d 655, 658 (8th Cir. 1996)
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(standard of review).7
Accordingly, we affirm the judgment of the district court.
A true copy.
Attest:
CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.
7
In addition, we note that any possible error in this matter
would have been harmless. As discussed above, Scout testified that
he did not know the identity of the police officers pursuing him.
Because Officer Bianas's alleged reputation for violence could
therefore not have affected Scout's state of mind when assaulting
Officer Bianas, Officer Bianas's reputation--and how it was
derived--was irrelevant.
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