United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 09-3873
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United States of America, *
*
Appellee, *
* Appeal from the United States
v. * District Court for the
* District of South Dakota.
Dominic Barrera, *
*
Appellant. *
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Submitted: November 19, 2010
Filed: January 10, 2011
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Before RILEY, Chief Judge, MELLOY and GRUENDER, Circuit Judges.
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GRUENDER, Circuit Judge.
Dominic Barrera appeals his conviction for two counts of assault, arguing that
two instances of alleged prosecutorial misconduct entitle him to a new trial. We
affirm.
I. BACKGROUND
In the early morning of December 6, 2007, Ernest Apodaca, Warren Hunter
LaPointe (“Mr. LaPointe”), and Tracy LaPointe (“Ms. LaPointe”)—Apodaca’s
girlfriend and Barrera’s former girlfriend—drove to Rosebud, South Dakota, located
on the Rosebud Indian Reservation, after an evening of drinking alcohol and smoking
marijuana. Apodaca, Mr. LaPointe, and Ms. LaPointe were parked outside the home
of Ms. LaPointe’s uncle when Barrera and George Casey Schmidt, who also had spent
the evening consuming alcohol and smoking marijuana, pulled up beside them. A
fight broke out between the two groups. Although stories differ as to which group
started the fight, Barrera admitted at trial that he threw the first punch, that he punched
and kneed Apodaca several times, and that he ended the fight by kicking Apodaca “as
hard as [he] could.” In describing the force of this final kick to the FBI agent who
initially interviewed him, Barrera reported that he kicked Apodaca “as if he was
kicking a 45-yard field goal.” When the fight ended, Apodaca had been seriously
injured. The bone structure of his face was badly damaged by blunt force trauma. Mr.
LaPointe also suffered injuries.
A federal grand jury returned an indictment charging both Barrera and Schmidt
with four counts of assault. Counts I and II charged them with assault with a
dangerous weapon, shod feet, of Apodaca and Mr. LaPointe, respectively, violations
of 18 U.S.C. §§ 1153, 113(a)(3). Counts III and IV charged them with assault of
Apodaca and Mr. LaPointe, respectively, resulting in serious bodily injury, violations
of 18 U.S.C. §§ 1153, 113(a)(6). Schmidt accepted a plea bargain and agreed to
testify against Barrera. Barrera pled not guilty and went to trial. The jury found
Barrera guilty of Counts I and III, the two counts involving Apodaca. The district
court1 sentenced Barrera to 48 months’ imprisonment on each count, to run
concurrently. On appeal, Barrera seeks a new trial, claiming that there were two
instances of prosecutorial misconduct that deprived him of a fair trial.
Barrera first argues that the prosecutor acted improperly by eliciting testimony
that he contends referred to allegations of domestic violence committed by him
1
The Honorable Charles B. Kornmann, United States District Judge for the
District of South Dakota.
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against Ms. LaPointe. Before trial, the district court granted Barrera’s motion in
limine to preclude the Government from introducing any evidence regarding
allegations that he had abused Ms. LaPointe during their relationship. In response to
questioning by Barrera during cross-examination, Ms. LaPointe admitted that in the
witness statement she wrote on the night of the fight she falsely claimed that Barrera
and Schmidt started the fight by dragging her, Mr. LaPointe, and Apodaca out of their
vehicle. Before redirect, in an effort to allow Ms. LaPointe to explain her motive for
making this false accusation, the Government requested the court’s permission to
question Ms. LaPointe about Barrera’s alleged abuse during their prior relationship.
The court ruled that such testimony would be irrelevant but gave the prosecutor
permission to ask Ms. LaPointe “a leading question” such as “if [she made the false
accusation] because she was angry about what he did to her boyfriend [Apodaca] that
night.” The prosecutor, however, asked Ms. LaPointe generally why she had written
the false accusation, rather than the specific leading question that the court had
approved. Ms. LaPointe responded: “I was intoxicated and just tired of him doing
everything he did to me, just wanted it to end.” Barrera moved for a mistrial, arguing
that this was an impermissible reference to the alleged domestic abuse. The court
denied the motion.
The second alleged instance of misconduct occurred during the rebuttal portion
of the Government’s closing argument. The prosecutor argued, “You saw how
Dominic Barrera looked. He sits here before you now in his suit. Look at the
pictures, though, in terms of how he looked on December 6th, and imagine it’s
midnight on the streets of Rosebud when he is coming at you. . . . The animation, the
punching, the shoes, the kicking, the dropping back and ultimately kicking the 45-yard
field goal.” Barrera immediately objected, and the court overruled his objection. He
now argues that this appeal to the jurors to imagine Barrera coming at them
constituted an impermissible “golden rule” argument. See generally United States v.
Palma, 473 F.3d 899, 902 (8th Cir. 2007) (holding that “[t]he prosecutor’s
comments,” which “were akin to a golden rule violation because they suggested the
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jurors were themselves direct victims of [the defendant’s] crimes” were improper
because they “encourage[d] the jury to ‘depart from neutrality and to decide the case
on the basis of personal interest and bias rather than on the evidence’” (quoting Lovett
ex rel. Lovett v. Union Pac. R.R. Co., 201 F.3d 1074, 1083 (8th Cir. 2000))).
II. DISCUSSION
We review the district court’s denial of Barrera’s motion for a new trial for
abuse of discretion. See United States v. Swift, 623 F.3d 618, 623 (8th Cir. 2010). On
appeal, “[w]e will reverse for prosecutorial misconduct only if the conduct, even if
improper, so prejudiced [the defendant] that he was unable to obtain a fair trial.”
Carlson v. Minnesota, 945 F.2d 1026, 1029 (8th Cir. 1991). The district court also has
“broad discretion in controlling closing arguments, and this court will not reverse
absent an abuse of discretion.” United States v. Beckman, 222 F.3d 512, 526 (8th Cir.
2000).
Although our general approach in examining allegations of prosecutorial
misconduct is “to determine first whether the remarks were in fact improper, and
second whether the remarks were so offensive so as to deprive the defendant of a fair
trial,” United States v. Eldridge, 984 F.2d 943, 946 (8th Cir. 1993), if we can
determine that the challenged prosecutorial conduct, even if improper, was not
prejudicial, nothing prevents us from affirming the conviction on this basis without
deciding whether the challenged actions constitute misconduct. See Swift, 623 F.3d
at 623 (assuming for the sake of argument that the challenged conduct was improper
because “[e]ven if the prosecutor’s comments . . . [were] improper, the comments
were not prejudicial”). To determine whether an alleged error is prejudicial, “we
consider the cumulative effect of the improprieties, the strength of the evidence
against the defendant, and whether the district court took any curative action.” Id.
(quoting United States v. Milk, 447 F.3d 593, 602 (8th Cir. 2006)).
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First, we consider the cumulative effect of the two instances of alleged
prosecutorial misconduct. Barrera argues that the cumulative impact was significant
because the reference to his alleged acts of domestic violence cast him “in the role of
[a] woman beater” and the challenged remark in the closing argument “was designed
to capitalize on that image and to maximize its prejudicial damage by urging the jurors
to imagine themselves being physically attacked by the defendant on trial.” We
recognize that the cumulative effect of two or more missteps may require reversal
“where the case as a whole presents an image of unfairness that has resulted in the
deprivation of a defendant’s constitutional rights, even though none of the claimed
errors is itself sufficient to require reversal.” United States v. Samples, 456 F.3d 875,
887 (8th Cir. 2006) (quoting United States v. Riddle, 193 F.3d 995, 998 (8th Cir.
1999)). In this case, however, we believe that Barrera has overstated the cumulative
effect of the alleged improprieties. We find unpersuasive Barrera’s contention that
the jury necessarily understood Ms. LaPointe’s opaque statement that she was “tired
of [Barrera] doing everything he did to me” as a reference to alleged domestic abuse.
The jury could just as easily have understood this as a reference to Barrera’s attack on
Ms. LaPointe’s boyfriend, Apodaca, earlier that night. And even if some jurors
understood the comment to refer to something that happened during Barrera and Ms.
LaPointe’s past relationship, there was no reason for them to suspect that Barrera had
physically abused Ms. LaPointe.
Barrera argues that the prejudice of Ms. LaPointe’s comment is clear because,
following the Government’s redirect, a juror submitted a question inquiring: “Why
did [Ms. LaPointe] think there would be violence after five years of being broken up?
Had he threatened her before?” This question, according to Barrera, constitutes “clear
evidence that at least one juror got the prosecutor’s message—loud and clear.”
However, we agree with the Government that this question was more likely prompted
by Ms. LaPointe’s testimony a few minutes earlier, after the district court asked her
“when it was that [she] first realized that there was going to be physical violence,” that
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she expected physical violence “[a]s soon as [Barrera] pulled up,” rather than by her
vague reference to “everything [Barrera] did to me.”
Because we find it unlikely that the jury understood Ms. LaPointe’s testimony
to refer to allegations of past domestic violence, Barrera’s argument that the
prosecutor’s question “set the stage for further misconduct” in the closing argument
that resulted in “a compounded cumulative prejudicial effect” fails to persuade. Of
course, even if the two challenged actions did not combine to produce such a
cumulative effect, it remains the case that “a single misstep on the part of the
prosecutor may be so destructive of the right to a fair trial that reversal is mandated.”
United States v. Beeks, 224 F.3d 741, 746 (8th Cir. 2000) (quoting United States v.
Johnson, 968 F.2d 768, 771 (8th Cir. 1992)). Accordingly, in order to weigh the
effect of the alleged improprieties, we proceed to an examination of the strength of the
Government’s evidence against Barrera.
“If the evidence of guilt is overwhelming, an improper argument is less likely
to affect the jury verdict.” Johnson, 968 F.2d at 772 (quoting United States v. Splain,
545 F.2d 1131, 1135 (8th Cir. 1976)). The evidence against Barrera was strong.
Apodaca, Ms. LaPointe, Mr. LaPoint, and Schmidt all testified for the Government at
trial, although their testimony was inconsistent on some of the details of the fight,
such as whether Apodaca threatened Barrera before the fight began. However,
Barrera admitted that he threw the first punch and that he ended the fight by kicking
Apodaca as hard as he could. Barrera also conceded that Apodaca had “serious bodily
injury” within the meaning of 18 U.S.C. § 113(a)(6). Barrera’s defense essentially
rested on two theories. First, he advanced a self-defense theory, claiming that
Apodaca had begun the fight by threatening him. Second, Barrera denied that he had
caused Apodaca’s most serious injuries, arguing instead that Schmidt may have
kicked Apodaca as Barrera was fleeing the scene and that this may have caused most
of Apodaca’s injuries.
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Both of Barrera’s defenses were implausible. First, even taking Barrera’s
version of events as true, his self-defense theory fails. Although Barrera testified that
Apodaca had started the fight by threatening him and that he thought Apodaca might
have had a gun, he also testified that he threw the first punch, that he hit Apodaca
multiple times and kneed him “towards his head” about four times, and that Apodaca
was bleeding and “crouched down and had his hands in his face” when Barrera kicked
him with his right foot as hard as he could. By that point in the fight, Apodaca already
had been subdued, and “[f]orce used after the danger has ceased to exist cannot be
justified on the basis of reasonable belief [that such force is necessary].” United
States v. Bordeaux, 570 F.3d 1041, 1048 (8th Cir. 2009) (quoting United States v.
Thomas, 946 F.2d 73, 77 (8th Cir. 1991)); see also United States v. Wagner, 834 F.2d
1474, 1486 (9th Cir. 1987) (“[The defendant’s] role as the aggressor . . . deprives him
of the right to assert [self] defense.”); United States v. Garcia, 625 F.2d 162, 170 (7th
Cir. 1980) (holding that “[t]he cause of the original fight” was “largely irrelevant”
because the defendants’ self-defense justification “ceased when they became the
aggressors”). Thus, even assuming that Apodaca’s threats alone could justify
Barrera’s actions at the beginning of the fight, he clearly had no self-defense
justification for kicking an incapacitated Apodaca “as if he was kicking a 45-yard field
goal.”
Second, Barrera’s contention that Schmidt may have caused the most serious
of Apodaca’s injuries was contradicted by overwhelming evidence. Apodaca testified
that although both Barrera and Schmidt beat him, Barrera’s attack was more serious
than Schmidt’s. Schmidt testified that he did not kick Apodaca. And Barrera himself
admitted that he punched and kneed Apodaca multiple times and that he kicked him
as hard as he could at the end of the fight. The combined strength of this testimony
makes Barrera’s contention that he did not cause Apodaca’s serious bodily injury
implausible.
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In short, Barrera admits that he beat Apodaca in what can only be described as
a brutal manner and that Apodaca suffered serious bodily injury. Even according to
Barrera’s own version of events, at a minimum, the final kick when Apodaca was
effectively incapacitated was not justified by self-defense. Moreover, Barrera’s
contention that Schmidt may have caused Apodaca’s most serious injuries was
implausible, in light of the other evidence introduced at trial. Accordingly, we find
the evidence against Barrera to be overwhelming, and we conclude that even if either
or both instances of alleged misconduct were actually improper, such misconduct was
unlikely to have affected the verdict. See Splain, 545 F.2d at 1135-36 (“The
overwhelming evidence of guilt in this case convinces us that the prosecutor’s
comment could not have prejudiced [the defendant] or affected the jury verdict.”).
Finally, we examine “the curative actions taken by the trial court.” United
States v. Hernandez, 779 F.2d 456, 460 (8th Cir. 1985). With regard to the first
instance of alleged misconduct, the district court offered to give a cautionary
instruction moments after the challenged testimony occurred, but Barrera declined,
due to his fear that such an instruction “would highlight that part of the testimony and
would actually compound the prejudice.” Jurors are presumed to follow the court’s
instructions, United States v. Smith, 508 F.3d 861, 866 (8th Cir. 2007), and the
instruction offered by the district court accordingly could have alleviated any possible
prejudice. Since Barrera refused the instruction, he “can not now complain that the
evidence may have prejudiced the jury. . . . The trial judge can not be faulted for any
trial mishaps that he offers to and could correct.” Splain, 545 F.2d at 1133.
Regarding the challenged remark during closing argument, no curative
instructions were offered or given because the court overruled Barrera’s objection to
the argument. However, when the district court submitted the case to the jury, it
instructed the jurors that “[s]tatements, arguments, questions and comments by
lawyers representing the parties in the case are not evidence.” To be sure, “[i]deally,
the trial court should give a cautionary instruction to the jury immediately after the
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misconduct occurs,” Hernandez, 779 F.2d at 461, but we believe that the general
instruction against considering counsel’s arguments as evidence still had some
curative effect, see id. Accordingly, especially in view of the overall strength of the
evidence against Barrera, “the lack of a specific and immediate cautionary instruction
is not serious enough to tip the balance toward reversal.” Id.
III. CONCLUSION
Even assuming that the prosecutor’s challenged conduct was improper,
considering the strength of the evidence, the cumulative effect of the two alleged
improprieties was not so prejudicial that Barrera “was unable to obtain a fair trial.”
Carlson, 945 F.2d at 1029. Accordingly, we affirm Barrera’s conviction.
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