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919 F2d 146 United States v. Lewis

919 F.2d 146

Unpublished Disposition

NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel.

UNITED STATES of America, Plaintiff-Appellee,
v.
Troy Donovan LEWIS, Defendant-Appellant.

No. 89-10522.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Oct. 2, 1990.
Decided Nov. 30, 1990.

Before GOODWIN, Chief Judge, and JAMES R. BROWNING and RYMER, Circuit Judges.

1

MEMORANDUM*

2

Defendant Troy Donovan Lewis appeals his conviction for voluntary manslaughter. Lewis contends the district court erroneously excluded from evidence and limited cross-examination on Lewis' statement to police in his post-arrest interview. Because of the erroneous exclusion and limitation, Lewis argues he was forced to take the stand to explain the admitted portion of the statement. We affirm his conviction.

I.

3

A district court's exclusion of evidence is reviewed for abuse of discretion. United States v. Faust, 850 F.2d 575, 585 (9th Cir.1988). A district court's limitation of the scope of cross-examination is likewise reviewed for abuse of discretion. United States v. McClintock, 748 F.2d 1278, 1289 (9th Cir.1984).

A.

4

Lewis contends the district court should have admitted the entirety of the statement under Fed.R.Evid. 106 to explain the context of his admission that he stabbed Walker. This court has held there is no violation of Rule 106 if the edited statement "neither 'distorts the meaning of the statement or excludes information substantially exculpatory of the declarant' ... nor excludes 'portions of a statement that are ... neither explanatory of [or] relevant to the admitted passages.' " United States v. Dorrell, 758 F.2d 427, 435 (9th Cir.1985) (citations omitted). See also Beech Aircraft Corp. v. Rainey, 109 S.Ct. 439, 450-51 (1988).

5

Lewis contends that the context of his statement that he stabbed Walker was not admitted into evidence, and that the jury was therefore "misled by the selective admission of only the incriminating part." However, the admitted portion presented the self-defense claim, since it included Lewis' contention that he had been "jumped." Therefore, the admitted statement did provide the context for Lewis' admission to the stabbing. Other excluded portions on the same subject would have been cumulative, and were not necessary to avoid misleading the jury. The court's refusal to admit the entire statement did not violate Rule 106.

B.

6

Lewis contends excluded portions of his statement were admissible under Fed.R.Evid. 803(3) which provides for the admission of statements concerning the declarant's mental or emotional condition. This "state-of-mind" exception to the hearsay rule is narrowly limited to "declarations of condition--'I'm scared'--and not belief--'I'm scared because Galkin threatened me.' " United States v. Emmert, 829 F.2d 805, 810 (9th Cir.1987) (quoting United States v. Cohen, 631 F.2d 1223, 1225 (5th Cir.1980).

7

Lewis claims his statement indicated "how scared he was" of Walker at the time of the fight, and this state of mind was relevant to his self-defense plea. However, nowhere in the post-arrest interview did Lewis describe his mental condition or his feelings at the time of the fight; he merely described the circumstances preceding and accompanying the altercation as he remembered them. Accordingly, these portions of his statement were not admissible under this court's decision in Emmert.

8

Since the district court did not err in excluding the additional portions of Lewis' statement, Lewis' fifth amendment privilege was not violated simply because he may have felt it necessary to take the stand because of the court's ruling. United States v. Hearst, 563 F.2d 1331, 1339 (9th Cir.1977); see also Harrison v. United States, 392 U.S. 219, 222 (1968).

9

Lewis' conviction is AFFIRMED.

*

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir.R. 36-3