United States v. Joseph Charging Hawk ( 1997 )


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  •                           United States Court of Appeals
    FOR THE EIGHTH CIRCUIT
    __________
    No. 97-1265
    ___________
    United States of America,                  *
    *
    Appellee,                     *
    *   Appeal from the United States
    v.                                   *   District Court for the
    *   District of South Dakota.
    Joseph Marvin Charging Hawk,               *
    *       [UNPUBLISHED]
    Appellant.                    *
    ____________
    Submitted:     July 23, 1997
    Filed:     July 28, 1997
    ___________
    Before FAGG, BOWMAN, and MURPHY, Circuit Judges.
    ___________
    PER CURIAM.
    After a fight broke out on an Indian reservation between Joseph Marvin
    Charging Hawk and Marlon Sun Bear, Charging Hawk knocked Sun Bear to the
    ground, struck him twice with a wine bottle, and used a large block to hit him in the
    head, resulting in injuries that caused Sun Bear’s death. Charging Hawk was thereafter
    charged with murdering Sun Bear with malice aforethought, in violation of 18 U.S.C.
    §§ 1153 and 1111. Prior to trial, Charging Hawk moved in limine to prohibit the
    government from offering into evidence photographs of the victim taken after his death.
    At a hearing on the motion outside of the jury’s presence, the district court1 noted that
    the issue was whether Charging Hawk acted with malice aforethought, and concluded
    it was important for the jury to determine the duration of the assault and the number of
    times the victim was struck; the court denied the motion in limine and admitted the
    challenged photographs at trial. The jury found Charging Hawk guilty of second-
    degree murder as charged in the indictment, and he appeals his conviction, challenging
    the admission of the photographs. We affirm.
    Under Federal Rule of Evidence 403, relevant evidence may be excluded if its
    probative value is substantially outweighed by the danger of unfair prejudice or of
    misleading the jury, or by needless presentation of cumulative evidence. Unfair
    prejudice occurs to the extent evidence creates an undue tendency to suggest decision
    on an improper basis. See United States v. Hiland, 
    909 F.2d 1114
    , 1135 (8th Cir.
    1990).
    "A district court has broad discretion in ruling on admissibility of evidence."
    United Stated v. Moore, 
    38 F.3d 977
    , 981 (8th Cir. 1994). We review a district court’s
    evidentiary rulings only for an abuse of discretion. See United States v. Ballew, 
    40 F.3d 936
    , 941 (8th Cir. 1994), cert. denied, 
    514 U.S. 1091
    (1995). Because Charging
    Hawk did not object to the admission of two of the exhibits he challenges on appeal,
    we review their admission for plain error resulting in a miscarriage of justice. See
    United States v. Roach, 
    28 F.3d 729
    , 732 (8th Cir. 1994); United States v. Grooms,
    
    978 F.2d 425
    , 429 (8th Cir. 1992).
    To prove malice aforethought, the government had to show Charging Hawk
    intended at the time of the killing to take the life of a human being, or to act in callous
    and wanton disregard of the consequences of human life. See United States v. Johnson,
    1
    The Honorable Charles B. Kornmann, United States District Judge for the
    District of South Dakota.
    -2-
    
    879 F.2d 331
    , 334 (8th Cir. 1989). Although Charging Hawk offered to stipulate to
    factual matters probative of causation, death, and the identity of the perpetrator, a jury
    is generally permitted to have a complete picture of the events constituting the charged
    crime, and a critical aspect of the balancing analysis under Rule 403 is whether the
    challenged evidence is probative of issues other than the one to which the defendant
    has offered to stipulate. See 
    Hiland, 909 F.2d at 1134
    .
    Given the government’s burden to show that Charging Hawk acted with malice
    aforethought--a contested issue--we conclude that the district court did not err in
    admitting the exhibits. See 
    Moore, 38 F.3d at 981
    ; United States v. Standish, 
    3 F.3d 1207
    , 1209 (8th Cir. 1993); United States v. Naranjo, 
    710 F.2d 1465
    , 1468-69 (8th Cir.
    1983).
    Finally, we conclude that the probative value of the photographs was not
    outweighed by the danger of misleading the jury as to the extent of the injuries inflicted
    by Charging Hawk, and were not so cumulative as to outweigh their probative value.
    Accordingly, we affirm.
    A true copy.
    Attest:
    CLERK, U. S. COURT OF APPEALS, EIGHTH CIRCUIT.
    -3-