48 F. 3d 1233 - United States v. Burch

Steven Asa Burch, a member of the Southern Ute Indian Tribe, was convicted of manslaughter in the death of nine-month-old Alicia Weston. Alicia and her four-year-old sister, Mataya, were the children of Melinda Ortiz, who lived in Ignacio, Colorado. On June 2, 1993, Melinda's sister, Blenda Burch, arrived at Melinda's house to find Melinda, her mother, and several other adults intoxicated and unconscious. Fearing for the safety of the children, Blenda took Mataya to the home she shared with her husband, Steve Burch, and her two children, Sapphire and Asa Burch.

Still fearing for the safety of Alicia, Blenda contacted the Southern Ute Police Department and the appropriate child services organizations. Blenda and Ute police officer Tyler Phillips went to Melinda's home and took custody of Alicia.

On June 4, 1993, Blenda left for work at 6:30 a.m. She left the children, including Alicia, in the care of a baby-sitter until 5:00 p.m., when Steve came home from work. Steve Burch, by his own testimony, was the only adult present after 5:00 p.m.2 At 11:45 p.m. that night, Steve called the police, stating Alicia was having trouble breathing. Police, including Officer Phillips and Officer Jeanne Sage, arrived to find the baby unconscious. Officer Phillips examined Alicia and found her without pulse or breath, "technically deceased." He engaged in efforts to revive her, including infant CPR. When emergency medical technicians arrived, the baby was taken by ambulance to the hospital in Durango, but was pronounced dead shortly after arrival. Doctor Harry Wilson, a pediatric pathologist, testified Alicia died of brain injury from a strong blow to the head that occurred six hours or less before the official time of death--in other words, after 5:00 p.m.

Mr. Burch was tried before a jury and convicted of manslaughter. He appeals his conviction on three grounds: admission of improper hearsay testimony, judicial misconduct, and premature deliberation.

Mr. Burch first assigns error to the admission of testimony of Danielle Howe. Ms. Howe was called as a rebuttal witness to impeach the testimony of defense witness Blenda Burch. Ms. Burch had testified:

Q. Did you have a discussion with Steve as to what had happened to cause this, about why was the ambulance there, what was going on?

A. He just told me she stopped breathing.

Q. Did he tell you that he had done anything to baby Alicia to cause this, ma'am?

A. No.

Q. Did you have a discussion with Steve at some point in time later on as to what might have caused the problems that the baby had?

A. No, not that I can remember.

Q. Did there come a point in time where Steve Burch said to you that he had hit the baby and it caused her injuries?

A. No.

Q. Did he ever say to you that he had done anything to the baby that could have caused these injuries?

A. No.

On cross-examination, the prosecutor asked:

Q. And he told you I did it, I hit her too roughly, didn't he?

A. No, he did not.

Q. It's true, isn't it, that when you later talked to your aunt Danielle, how you told her that your husband Steve had told you how he had hurt Alicia; isn't that true?

A. I don't remember telling her that, no.

Ms. Howe testified Blenda had told her Steve had said "he was afraid he might go to prison and he might have played with the baby too rough." Mr. Burch argues the prejudicial effect of this testimony substantially outweighed its probative value, and its admission warrants reversal.

Evidentiary rulings are committed to the discretion of the trial court and are reviewed for an abuse of that discretion. United States v. Zimmerman, 943 F.2d 1204, 1211 (10th Cir.1991). Evidence is admissible if relevant. Fed.R.Evid. 402. It may be excluded if its probative value is substantially outweighed by its prejudicial effect. Fed.R.Evid. 403. Trial court decisions to admit or exclude evidence pursuant to Rule 403 are reviewed for an abuse of discretion. Durtsche v. American Colloid Co., 958 F.2d 1007, 1012 (10th Cir.1992).

Mr. Burch relies chiefly on United States v. Ince, 21 F.3d 576 (4th Cir.1994), which held a hearsay confession is too prejudicial to admit as rebuttal evidence. Id. at 581. There, the court stated, "a trial judge should rarely, if ever, permit the Government to impeach' its own witness by presenting what would otherwise be inadmissible hearsay if that hearsay contains an alleged confession to the crime for which the defendant is being tried." Id. Ince involved the testimony of a witness, Stevens, that Ince had admitted firing the gun used in the crime. Id. Stevens' testimony was admitted to impeach the testimony of another witness, Neumann. Id. Neumann had made a prior statement that Ince confessed to her but, at trial, testified she could not remember. Id.

Ince is of no help here because it is distinguishable in several ways. The witness in Ince was called by the government; here, Blenda Burch was called by the defense. Also, even if her testimony were improperly taken for its truth, that truth would leave a finder of fact several steps more distant from guilt than in Ince. The identification of Ince as the perpetrator left little question of his guilt. Here, the connection is not so compelling. Granted, Mr. Burch's fear of prosecution makes his guilt more probable. It is therefore relevant and inculpatory. But while his statement of fear is prejudicial, it is not conclusive of guilt. Mr. Burch admitted striking Alicia during the course of the evening in a variety of ways that would not have been fatal: he testified he hit her to revive her after she stopped breathing--snapping her head with his fingers and slapping her--and earlier in the evening, he threw a toy ball at her, which bounced off her head. The jury could have concluded that such actions were all Steve Burch described when he stated he was "playing too rough." While not forceful enough to cause death, the actions could lead him to fear prosecution. They did not necessarily imply guilt.

The potential prejudice of a hearsay confession can be cured by limiting instructions. If a limiting instruction is given, the jury is presumed to understand and apply it. United States v. Rivera, 778 F.2d 591, 599 (10th Cir.1985), cert. denied, 475 U.S. 1068 (1986). Two limiting instructions were given here. The first, contemporaneous with the testimony, was given shortly prior to the statements at issue. The second, given during jury instruction, consisted of a general instruction on the use of testimony for limited purposes and a slightly more specific instruction on the use of impeachment testimony. Neither instruction explicitly referred to the statements made by Steve Burch and reported by Blenda to Ms. Howe.

Mr. Burch argues that the contemporaneous instruction was too remote for the jurors to remember. He accurately points out the instruction was given on page 800 of the transcript and the critical testimony on page 804. The intervening testimony related a conversation between Blenda Burch and Ms. Howe, first concerning Alicia's prior medical visit to the health clinic for a cold, then the events of June 4, and finally the statements to which Mr. Burch objected.

Four pages of testimony is not necessarily enough to render a limiting instruction ineffective. It is the passage of context, not the passage of time, that reduces the effect of a limiting instruction. Here, there was a short delay between the instruction and Ms. Howe's statements, and this delay reduced the instruction's impact. However, the record reveals the delay to be partly due to objections by the defense. The prosecutor's first question to Ms. Howe after the contemporaneous instruction was, "Do you remember having a conversation with Blenda Burch on Saturday, June 5 ... ?" When Ms. Howe answered, "Yes," the next question was, "Tell us about how it is that you began to talk to Blenda about the baby's death?" Ms. Howe proceeded to describe a conversation covering several subjects culminating with Alicia's death. The form of the question was appropriately open-ended to avoid leading the witness. Given this, the prosecution had little control over which part of the conversation Ms. Howe would describe first. Not surprisingly, she related the conversation from beginning to end. About half a page after she began, the prosecution asked, "Do you recall Blenda saying something about the baby" and was cut off by defense counsel's objection to the leading form of the question. To avoid leading, the prosecutor was obliged to follow the substance of the testimony as it was presented by Ms. Howe. Defense counsel, by objecting, delayed the reference to Mr. Burch's statements--statements that the record's references to prior colloquy indicate were anticipated by defense counsel. Thus, at least part of the delay complained of by Mr. Burch was brought about by his own counsel.3

Mr. Burch also argues the prosecutor referred to Ms. Howe's testimony as substantive evidence in his closing argument. The prosecutor stated, "Steve is talking about going to prison. Steve says he handled the baby roughly." The government contends the argument was made within the context of challenging Blenda Burch's credibility. A reading of this statement in the context of the record reveals this to be unquestionably so. We conclude neither the failure to give additional instructions nor the statement in prosecutor's closing argument is enough to warrant reversal.

Even so, we may assume the limiting instruction was ineffective to dispel the prejudice occasioned by Ms. Howe's testimony and still confidently affirm this conviction. A defendant has the right to a fair trial, not a perfect one. United States v. Micheltree, 940 F.2d 1329, 1334 (10th Cir.1991). If an error at trial does not rise to the level of a constitutional violation, it will not warrant reversal "unless it had a substantial influence' on the outcome or leaves one in 'grave doubt' as to whether it had such effect." United States v. Rivera, 900 F.2d 1462, 1469 (10th Cir.1990) (citations omitted). Harmless error review is de novo. United States v. Perdue, 8 F.3d 1455, 1469 (10th Cir.1993).

Ms. Howe's testimony was not the only hearsay confession introduced here. Mr. Burch also confessed to the FBI, making oral and written statements that he struck Alicia. His confession, later repudiated, was entered into evidence and testified to by FBI agent Don Gunnerson, who took Mr. Burch's statement. In addition, on the night of June 4 Mr. Burch spoke to Officer Sage, who testified at trial, "[Mr. Burch] stated he had slapped [Alicia] on the left side of the face with his hand." Given Ms. Howe's statement was introduced among three other statements by Mr. Burch that he struck Alicia, one of which was a written statement in Mr. Burch's own handwriting, Ms. Howe's cumulative testimony was harmless error.

Mr. Burch next assigns error based on the conduct of the district court. First, he points to a colloquy that took place in the jury's presence between the court and defense counsel, Mr. Logan. Officer Phillips' police report had been entered into evidence. Unbeknownst to the court, a photocopy was entered instead of the original. When Officer Phillips testified, he stated that a portion of the report, written on the reverse, was missing from the page in evidence. The original report's reverse side bore a typewritten paragraph that had apparently not been transferred to the photocopy. This paragraph described the bruise on Alicia's face. No one in the courtroom--neither the court, the attorneys, nor the witness--knew what happened to the original. This resulted in an exchange that took place in the jury's presence:

THE COURT: It may be that you have the officer's original, Mr. Logan, or maybe Kyra does.

MR. LOGAN: I think we are all working out of multiple copies.

THE COURT: Well, I took the officer's original and gave it to my law clerk to make two copies.

MR. LOGAN: Yes, sir, I understand.

THE COURT: I gave you each one and the officer didn't get back his.

* * *

MR. LOGAN: Well, I certainly don't have it. Perhaps Ms. Jenner [the prosecutor] can help us or the court. It's my understanding Ms. Jenner has all the originals, and even the officer had only a copy, but that's just my understanding, your Honor.

MS. JENNER: I have a copy as well, your Honor, with nothing on the back of the diagram.

THE COURT: Well, we will find out what happened to the original.

* * *

MR. LOGAN: There has been a failure of discovery here. Apparently Ms. Jenner isn't herself aware of this information. We certainly have never been advised of it or furnished it.

THE COURT: Counsel, I don't know what you did with it.

MR. LOGAN: I didn't do anything with it.

THE COURT: I suggest maybe you did.... I gave what you have to my law clerk, and my law clerk brought us back that copy plus two copies that he made, and he gave one to you and one to me and one to Ms. Jenner.

* * *

THE COURT: So I don't know what you did with it in between the time you got it ... and the time you gave it to me at that door.

Subsequently, Mr. Burch moved for mistrial, and the motion was summarily denied.

The standard of review for denial of a motion for mistrial is abuse of discretion. United States v. Pinelli, 890 F.2d 1461, 1482 (10th Cir.1989), cert. denied, 495 U.S. 960 (1990). A mistrial should be granted if the error deprives the defendant of a fair trial. Id. The trial is examined for fairness as a whole, based on the entire record. See id.

The government cites United States v. Cronic, 839 F.2d 1401, 1402 (10th Cir.1988), on this point. In Cronic, we ordered a new trial where the court, in response to defendant's "Thank you," said "Well, you're not welcome. I think you're a swindler and a cheat and you wouldn't see the light of day if I had any choice." Id. at 1402. Cronic involved judicial remarks about the defendant himself, not defense counsel. In addition, the remarks in Cronic were made at hearing after remand, not at trial, so presumably they were not in a jury's presence. Id. The issue there was adequacy of representation; here is it the fairness of trial. Id. Cronic is therefore of little help.

The government also cites United States v. Shelton, 736 F.2d 1397 (10th Cir.), cert. denied, 469 U.S. 857 (1984). Shelton affirmed a denial of a motion for mistrial where the court told counsel, "I'm not going to take time out to hold law school here." Id. at 1403. The court attacked not the attorney's credibility but her competency, specifically, ignorance of the best evidence rule. Id. at 1404. We called the judicial remarks "nonprejudicial in a constitutional sense." Id.

We have also discussed this issue in the context of a civil trial. "Cutting comments to counsel, particularly those relating to skill rather than good faith or integrity, will not generally mandate reversal." Vasey v. Martin Marietta Corp., 29 F.3d 1460, 1469 (10th Cir.1994) (quoting Pau v. Yosemite Park & Curry Co., 928 F.2d 880, 885 (9th Cir.1991)). However, the standard for mistrial based on judicial misconduct in the civil setting is "quite high." Vasey, 29 F.3d at 1469. Because civil trials do not result in the loss of liberty, it may not be appropriate to use the same standard for criminal trials.

We turn to sister circuits for more instructive authority. The Ninth Circuit has held that if a defendant shows a judge has displayed animosity only toward defense counsel, and not the defendant, no mistrial is warranted. See United States v. DeLuca, 692 F.2d 1277, 1282 (9th Cir.1982). The distinction is material because the credibility and character of the defendant is often at issue in a criminal case. The credibility and character of a defense attorney is not. The Second Circuit treated this issue extensively in United States v. Mickens, 926 F.2d 1323, 1327-28 (2d Cir.1991), cert. denied, 502 U.S. 1060 (1992). This case held "occasional intemperate remarks" did not warrant a new trial. Id. at 1327. It quoted the following language:

Judges, being human, are not immune to feelings of frustration at the occasional antics or inartfulness of attorneys or impatience at the evasiveness of witnesses. Such feelings may give vent to remarks which, judged in isolation from the totality of the record through the dispassionate looking glass of hindsight "would have been better left unsaid."

Id. (quoting United States v. Robinson, 635 F.2d 981, 985 (2d Cir.1980), cert. denied, 451 U.S. 992 (1981)).

The government argues the colloquy about Officer Phillips' report merely suggests defense counsel misplaced the document. As it points out, the court later stated before the jury, "We will find your notes someplace. My law clerk has taken the jury clerk out to the airport, and when he gets back we will see if we can find them." This suggests the court's recognition the document may not have been, in fact, in defense counsel's possession. The government further points out that defense counsel remarked in his closing argument on the absence of the original document to challenge Officer Phillips' credibility. Thus, the harm from the court's comments, if any, was ameliorated by this opportunity to impeach a prosecution witness. The district court here, at most, accused defense counsel of misplacing the document rather than tampering with it. This suggests incompetence rather than dishonesty. The jury would have considered defense counsel's failure to produce the original document an understandable mistake, not an effort to obstruct justice. Finally, the court gave an appropriate curative instruction.

Mr. Burch further assigns error to a series of rulings and judicial actions he argues evince bias against him. He first challenges the court's interruption and questioning of a prosecution witness during cross-examination. Dr. Joan MacEachen of the Southern Ute Health Center was testifying as to the frequency with which Alicia's mother kept routine medical appointments for her child. According to Dr. MacEachen, the health center made routine appointments automatically and sent a notice of each appointment to the parent. The parent was expected to either keep the appointment or reschedule. Alicia's mother missed five appointments, but each time either made them up or brought the baby in for non-routine treatment. Defense counsel repeatedly asked how many scheduled appointments had been missed. Dr. MacEachen repeatedly explained that the missed appointments were made up and the child was seen regularly. Eventually, defense counsel asked, "Ma'am, can you answer the question?" The court interjected, "She is trying to. Don't interrupt her." The exchange continued. Later, the court interjected, "If you can't answer it yes or no, Doctor, you can answer it in the way you best can." The exchange continued. Finally, the court interjected, "Doctor, tell us precisely how many appointments were missed. Were they really missed if the woman made them up in a day or two?" Shortly thereafter, the court again interjected, "All right, we have exhausted this.... Go on to something else."

Mr. Burch further assigns error based on the court's questioning of Dr. Wilson. When Dr. Wilson testified that Alicia's injuries were not caused by a fall, the court said:

My recollection of our kids--and maybe this is part of the Brimmer anatomy--but it seems to me whenever they fell from standing near a couch or something they were always prat falls. They sat down suddenly. They didn't fall and hit their heads. What as a pediatrician have you observed?

Oh, well, kids can fall and hit their heads, sir. And most of the more common reasons that a parent will bring their child into the emergency room is that the child had just hit their head, and again it's everyone's experience that the vast majority of time when that occurs the kid is perfectly fine, and in a rare situation will there be a bruise or a knot or a kid had been knocked out, but you will have kids that do not have lethal trauma.

A trial judge may question witnesses. United States v. Latimer, 548 F.2d 311, 314 (10th Cir.1977). A judge may curtail testimony sua sponte to expedite trial. United States v. Mobile Materials, Inc., 881 F.2d 866, 877 (10th Cir.1989), cert. denied, 493 U.S. 1043 (1990). A judge may exclude evidence that confuses the issues. Fed.R.Evid. 403.

Here, the court gave a curative instruction before trial, explaining that its comments were not to be considered evidence. The form of the court's question, which did not lead the witness, belies Mr. Burch's argument that the court "took over the prosecutor's role." Moreover, the witness' response was not particularly prejudicial, leaving room for the possibility that Alicia's head trauma could have been accidental.

Defendant next assigns error based on a colloquy in chambers in which the court and defense counsel disagreed on whether cross-examination is "the greatest engine for the discovery of truth invented by man." This colloquy did not take place before the jury. It was trivial, if not petty. Even an impartial judge is not obliged to agree with counsel on generalized notions of justice.

Finally, Mr. Burch assigns error to a statement the court made to the jurors immediately before deliberations: "You will be glad to know that your bailiff is one of our deputy United States Marshals from Denver who is completely trained in all of the martial arts, and on top of that is a sure shot, so you are in great hands. You are absolutely safe." Mr. Burch argues this comment implied the jurors were in danger from him.

The government responds that because Mr. Burch failed to object to the comments at trial, he must show they are plain error to warrant a mistrial. United States v. Herndon, 982 F.2d 1411, 1414 (10th Cir.1992). Plain error must be both "obvious and substantial." United States v. Barber, 39 F.3d 285, 288 (10th Cir.1994) (citations omitted).4

Although neither party cites Holbrook v. Flynn, 475 U.S. 560 (1986), we believe this Supreme Court case is instructive. Holbrook held the presence of "a roomful of uniformed and armed policemen" was not inherently unconstitutional. Id. at 570. The Holbrook Court reasoned defendant is constitutionally entitled to be tried based solely on the evidence, not on "official suspicion, indictment, continued custody, or other circumstances not adduced as proof at trial." Id. at 567 (quoting Taylor v. Kentucky, 436 U.S. 478, 485 (1978)). Security measures in the courtroom only render a trial unconstitutional when they are "inherently prejudicial." 475 U.S. at 568. The inquiry is not into the state of mind of the jurors because of the problems of proof associated with state of mind. Id. at 570. Instead, the inquiry is whether the security measures create an "unacceptable risk of prejudice." Id. at 571.

Of all the judicial actions cited by defendant, the court's remarks about the bailiff are the most troubling and also the most inexplicable. The court made this statement immediately after the marshal was sworn in. There are three possibilities here. Either the court was seriously implying the jurors were in danger, or he was not. If he was, that danger either came from the defendant or elsewhere. None of these possibilities mandates a mistrial.

If the jurors were in danger from the defendant, this may or may not imply guilt. There are dangerous people who do not beat children. There are child abusers who are not dangerous to adults. Manslaughter is, as Mr. Burch argues, certainly a violent crime. But common sense tells us there is a difference between those who strike nine-month-old infants and those who assault jurors in federal court. Here, dangerousness and guilt are separable. The court's suggestion that Mr. Burch was dangerous would therefore be less likely to suggest to the jury that the court believed him guilty than to suggest he was simply a violent or dangerous man. The harm would therefore spring from a generalized notion that Mr. Burch was of violent or bad character. Much like impermissible character evidence, this could prejudice the jury against Mr. Burch even though it did not imply guilt.

The second inference is that the danger sprang from sources other than the defendant. Without embellishment, we note some courthouses are dangerous.

The third inference is that there was no danger at all. The court may have been joking for the benefit of the marshal or the jury. The court may have been speaking ironically given the relative safety of the federal courthouse. It is nearly impossible to extract humor or irony from the kind of paper transcription available to us on appeal.

The Supreme Court in Holbrook made the following remarks we believe instructive:

The chief feature that distinguishes the use of identifiable security officers from courtroom practices we might find inherently prejudicial is the wider range of inferences that a juror might reasonably draw from the officers' presence. While shackling and prison clothes are unmistakable indications of the need to separate a defendant from the community at large, the presence of guards at a defendant's trial need not be interpreted as a sign that he is particularly dangerous or culpable. Jurors may just as easily believe that the officers are there to guard against disruptions emanating from outside the courtroom or to ensure that tense courtroom exchanges do not erupt into violence. Indeed, it is entirely possible that jurors will not infer anything at all from the presence of the guards. If they are placed at some distance from the accused, security officers may well be perceived more as elements of an impressive drama than as reminders of the defendant's special status. Our society has become inured to the presence of armed guards in most public places; they are doubtless taken for granted so long as their numbers or weaponry do not suggest particular official concern or alarm.

475 U.S. at 569. Of course, there are several distinguishing facts that make Holbrook persuasive rather than binding authority on this issue. Here, the marshal was not only present but remarked upon by the court. There was only one marshal, who was not there specifically to guard Mr. Burch. Here, Mr. Burch had not been disruptive or violent in the courtroom. However, these distinctions do not blunt the persuasive force of the Supreme Court's observations. If the Court is willing to draw the inference that the jury will not equate the presence of security personnel in the courtroom with a defendant's guilt, we may do so as well.

Considering all the issues, Mr. Burch received a fair and impartial trial. Except for the remarks about the bailiff, all of the acts to which Mr. Burch assigns error are well within the court's discretion to conduct trial expeditiously and to clarify evidence for the court and the jury. The remarks about the bailiff might warrant a new trial if they were clearly directed toward defendant, as in Cronic. The court properly denied the motion for mistrial.

Mr. Burch last assigns error to the district court's allowing the jury to view exhibits before deliberations began. The court stated:

Now it's too early to deliberate. Don't you know you can nudge your neighbor and say, well, see this or something like that. But don't deliberate. Don't make any decisions yet because you haven't heard those good arguments of counsel that we are about to hear, and neither have you heard the instructions.

Mr. Burch concedes there is no error in showing the jury exhibits prior to deliberation. Therefore, the issue is whether it is a premature deliberation for a juror to nudge his neighbor and say, "see this." Mr. Burch correctly observes there is no binding authority on this issue. He cites United States v. Resko, 3 F.3d 684 (3d Cir.1993), which vacated a conviction where evidence was presented that jurors were discussing the case during recesses. Resko sets forth six reasons for the prohibition on premature deliberation. First, discussion might take place before defendant presents his evidence. Id. at 689. Mr. Burch concedes this reason is inapposite here. Second, once a juror expresses his opinion, he is likely to adhere to it. Id. "See this" is not an opinion. Third, premature discussions may thwart the collective decision making process of the jury room. Id. "See this" is not a discussion. Fourth, deliberations are inappropriate before jurors have been instructed on reasonable doubt. Id. Here, the court explicitly instructed the jurors to reserve making any decisions until after the instructions. Fifth, if deliberations occur before the defendant has had an opportunity to present all of his evidence, it would interfere with the presumption of innocence. Id. This, too, is inapposite. Finally, premature deliberation interferes with the defendant's right to a fair trial. Id. at 689-90. The Resko court did not elaborate on this reason.

The behavior suggested--nudging and "see this"--is not deliberation. It is not discussion or the expression of an opinion. It would tax any juror to divine from such a statement what his neighbor believes should be the outcome of the case, or whether any particular piece of evidence is credible.

Moreover, in Resko, there was evidence the jurors had actually engaged in premature discussions. Here, there was none. Unquestionably, it would have been better for the court not to suggest this behavior. Nevertheless, this is no basis to reverse.

In this case, the district court trod the boundaries of propriety more than necessary. We recognize that levity may ease the burden of civic duty for jurors and jurists alike; but levity may also render their efforts in vain when it provides the basis for reversal. However, we see no reason in this case for such a result. The judgment is AFFIRMED.