F I L E D
United States Court of Appeals
Tenth Circuit
PUBLISH
JUN 24 1998
UNITED STATES COURT OF APPEALS
PATRICK FISHER
Clerk
TENTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v. No. 96-2291
ARVIN BENALLY,
Defendant - Appellant.
Appeal from the United States District Court
for the District of New Mexico
(D.C. No. CR-95-584-SC)
John Van Butcher, Assistant Federal Public Defender, Albuquerque, New Mexico,
for the Defendant - Appellant.
Mary Catherine McCulloch, Assistant United States Attorney (John J. Kelly,
United States Attorney, with her on the brief), Albuquerque, New Mexico, for the
Plaintiff - Appellee.
Before BRISCOE, McWILLIAMS and LUCERO, Circuit Judges.
LUCERO, Circuit Judge.
Arvin Benally appeals his conviction of voluntary manslaughter, arguing
that the district court erroneously failed to instruct the jury on self-defense and
involuntary manslaughter, and wrongly denied two motions to suppress evidence.
We agree that the record reveals evidence upon which a reasonable jury could
have acquitted defendant on the basis of self-defense, or, alternatively, found him
guilty of involuntary manslaughter. Consequently, we reverse and remand for a
new trial. 1
I
On the night of October 3, 1995, Jonathan Benally, Arvin Benally, Rodrick
Benally, Cheryl Largo and Christina Talk gathered near Arvin’s home to talk,
drink, and listen to music. After Jonathan and Arvin left to purchase a half pint
of whiskey, Russell John joined the group. Following Jonathan and Arvin’s
return, Russell offered them $20 to purchase additional beer. Told the liquor
stores were closed, Russell offered to obtain marijuana instead and left.
According to Rodrick Benally, Jonathan then proposed that “if he doesn’t come
back with the marijuana . . . we should take that $20 from him,” R., Vol. X, at
120, and Arvin agreed.
Accounts differ as to what transpired when Russell returned without the
marijuana. Rodrick testified that Jonathan and Arvin were upset, and that
Jonathan refused to accept Russell’s excuses and threw him to the ground “for no
In an unpublished opinion issued today, United States v. Jonathan Benally, No.
1
96-2296, (10th Cir. June 24, 1998), we affirm the conviction for second degree murder of
Arvin’s codefendant.
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reason.” Id. at 123. According to Rodrick, Russell then knocked Jonathan to the
ground and suddenly punched Arvin in the face, knocking his glasses off and
drawing blood. Arvin testified that he was struck as he attempted to break up the
fight between Jonathan and Russell. He also stated that Russell’s blow caused
him to black out momentarily.
The testimonies of Rodrick and Arvin also conflict in their account of the
subsequent melee. We summarize Rodrick’s testimony first. According to
Rodrick, Jonathan tackled Russell, sat on him, and punched him repeatedly in the
face. Arvin kicked Russell in the head and side and was restrained by Rodrick.
Jonathan then renewed his attack, “kicking [Russell] side to side and . . . in the
groin area.” Id. at 131. Pulling down Russell’s pants, Jonathan again kicked him
in the groin. Arvin then hit Russell in the face, and was restrained once more.
During cross-examination, Rodrick testified that Arvin had struck Russell no
more than four times during the fight. As Arvin and Rodrick were looking for
Arvin’s glasses, Jonathan cut and stabbed Russell’s buttocks and kicked him
again. The group then abandoned Russell and agreed to lie about their
whereabouts that night. 2 Later that night when Arvin and Rodrick returned to
2
Cheryl Largo testified that shortly after they left the scene, Jonathan bragged
about having blood on his hands. By Christina Talk’s account, Jonathan also bragged
about how much he had hurt Russell and that he had killed him.
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search for the missing glasses, Arvin stated he wanted to strike Russell because
“[t]hat son of a bitch hit me,” id. at 146, but he was stopped by Rodrick.
By Arvin’s account, his role in the fight was minimal. After being struck
by Russell as he attempted to break up the fight, he could not see because his
glasses had been knocked from his face and it was dark. He then “pushed and
shoved” Jonathan and Russell to keep them away from him, R., Vol. XI, at 312,
and began looking for his glasses before retreating to a pickup truck. He could
not see what transpired in the fight between Jonathan and Russell. Though he
admitted striking Russell in response to Russell’s punch, Arvin stated that he only
did so because he “didn’t want to get hit again.” Id. at 324. He denied intent to
hurt or kill anyone.
Russell’s body was discovered the next morning. Arvin was charged with
first degree murder in violation of 18 U.S.C. §§ 1153 3 and 1111(a). He was also
charged with aiding and abetting first degree murder in violation of 18 U.S.C. § 2.
The district court instructed the jury as to first degree murder and the lesser
included offenses of second degree murder and voluntary manslaughter. Over
3
Section 1153 provides for the application of select criminal laws (including
murder and manslaughter) to crimes by Native Americans in Indian country. See §
1153(a). At trial, it was stipulated that both Arvin Benally and Russell John were
enrolled members of the Navajo tribe and that the alleged offense occurred within the
boundaries of the Navajo Indian Reservation in the state of New Mexico. See R., Vol.
XI, at 278.
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defense objection, the court refused to instruct on either self-defense or
involuntary manslaughter. The jury returned a verdict of guilty as to voluntary
manslaughter.
II
Defendant appeals the district court’s decision denying his requested
instruction on self-defense. It is well established that “a defendant is entitled to
an instruction as to any recognized defense for which there exists evidence
sufficient for a reasonable jury to find in his favor.” Mathews v. United States,
485 U.S. 58, 63 (1988). Had the jury credited Arvin’s account of the fight, they
could properly have concluded that Arvin acted in self-defense. By his account,
Russell struck him first, causing him to black out momentarily. He further
testified that from that point on, his actions were solely intended to prevent being
hit again. If Arvin’s testimony were credited, the jury could reasonably have
believed that the force Arvin used in self-defense was reasonable in light of the
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threat presented. 4 Consequently, the district court erred in denying the requested
instruction.
4
The dissent contends that, viewing the evidence “in a light most favorable to the
government” and applying principles of aider and abettor liability, the district court’s
denial of defendant’s proposed jury instructions was proper. In so doing, the dissent
misapprehends the appropriate standard of review. One reasonable inference from this
record may be that Arvin and Jonathan, acting jointly, beat Russell “to a pulp.” But, on
the basis of the record, we cannot say that it would have been unreasonable for the jury to
have concluded that Arvin’s actions were independent of those of Jonathan. Moreover, a
defendant charged as an aider and abettor is still entitled to jury instructions which reflect
the evidence presented at trial. See Mathews, 485 U.S. at 63.
In reviewing the denial of a jury instruction, “we must give full credence to
defendant’s testimony.” United States v. Smith, 63 F.3d 956, 965 (10th Cir. 1995) (citing
United States v. Williams, 791 F.2d 1383, 1388 (9th Cir. 1986)), vacated on other
grounds, 516 U.S. 1105 (1996); see also United States v. Scafe, 822 F.2d 928, 932 (10th
Cir. 1987) (“A defendant is entitled to jury instructions on any theory of defense finding
support in the law and the evidence.”). For present purposes, therefore, we must credit
Arvin’s contentions that he merely “pushed and shoved” after being struck by Russell and
that his actions were motivated by a desire to avoid being hit again. Thus, even though
Arvin could have caused Russell’s death, the facts and the law permit Arvin’s actions to
be characterized as self-defense. See United States v. Begay, 833 F.2d 900, 901 (10th
Cir. 1987) (self-defense instruction warranted when defendant “attempts to use nondeadly
force,” but does so in manner resulting in death) (quoting United States v. Manuel, 706
F.2d 908, 915 (9th Cir. 1983)); see also People v. Sam, 454 P.2d 700, 710-11 (Cal. 1969)
(holding that where use of “reasonable, nondeadly force” causes death, defendant entitled
to instruction on self-defense); Garramone v. State, 636 So. 2d 869, 871 (Fla. Dist. Ct.
App. 1994) (reversing for failure to instruct on justifiable use of nondeadly force, noting
“it is the nature of the force and not the end result that must be evaluated”); White v.
Commonwealth, 333 S.W.2d 521, 524 (Ky. 1960) (“[W]here no deadly weapons are
involved and the defendant is entitled to an instruction on involuntary manslaughter, an
unintentional homicide, he is entitled to a further instruction on the theory of defense
against ordinary assault and battery, against the menace of mere bodily harm as
distinguished from the threat of death or great bodily harm.”); State v. Hare, 575 N.W.2d
828, 833 (Minn. 1998) (holding it error to give self-defense instruction requiring that
defendant believe his actions were necessary to avert death or great bodily harm when
defendant claimed that the victim’s death was accidental). We cannot therefore agree
with the dissent that, as a matter of law, Arvin used excessive force. That determination
is for a properly instructed jury to make.
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III
We next consider defendant’s challenge of the district court’s failure to
charge the jury on the lesser included offense of involuntary manslaughter.
Although “[t]he decision of whether there is enough evidence to justify a lesser
included offense charge rests within the sound discretion of the trial judge,”
United States v. Chapman, 615 F.2d 1294, 1298 (10th Cir. 1980) (citing United
States v. Busic, 592 F.2d 13 (2d Cir. 1978)), a defendant is entitled to such an
instruction if:
(1) there was a proper request; (2) the lesser included offense
includes some but not all of the elements of the offense charged; (3)
the elements differentiating the two offenses are in dispute; and (4) a
jury could rationally convict the defendant of the lesser offense and
acquit him of the greater offense.
United States v. Moore, 108 F.3d 270, 272 (10th Cir. 1997). If these four factors
are satisfied, the trial court is required to provide the requested instruction. See
United States v. Duran, 127 F.3d 911, 914-15 (10th Cir. 1997). Only if we are
convinced that the evidence presented at trial is such that a rational jury could
acquit on the charged crime but convict on the lesser included offense may the
denial of the requested instruction be reversed. See Moore, 108 F.3d at 272
(citing Keeble v. United States, 412 U.S. 205 (1973)); see also Keeble, 412 U.S.
at 208 (“[I]t is now beyond dispute that the defendant is entitled to an instruction
on a lesser included offense if the evidence would permit a jury rationally to find
him guilty of the lesser offense and acquit him of the greater.”) (emphasis added).
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It is undisputed that defendant properly requested a jury instruction on
involuntary manslaughter, see R., Vol. XII, at 401-02, and involuntary
manslaughter is a lesser included offense of the offense charged, see United
States v. Skinner, 667 F.2d 1306, 1309 & n.1 (9th Cir. 1982). The issue for us to
decide is whether a rational jury could not have convicted defendant of
involuntary manslaughter while acquitting him of voluntary manslaughter.
Involuntary manslaughter is defined as the “unlawful killing of a human
being without malice . . . [i]n the commission of an unlawful act not amounting to
a felony, or in the commission in an unlawful manner, or without due caution and
circumspection, of a lawful act which might produce death.” 18 U.S.C. §
1112(a). Defendant claims that because Russell was the initial aggressor, he was
entitled to an involuntary manslaughter instruction based on imperfect self-
defense—i.e., that Russell died as a consequence of a lawful act committed in an
unlawful manner. Alternatively, he insists his actions on the night of Russell
John’s death could be characterized as misdemeanor assault resulting in death,
thus constituting involuntary manslaughter. We consider these arguments.
A
Defendant’s first contention is that a reasonable jury could have found that
he negligently caused Russell’s death while acting in self-defense. He argues that
an involuntary manslaughter instruction was warranted because he attempted to
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use nondeadly force, but did so in a criminally negligent manner and death
resulted. See United States v. Begay, 833 F.2d 900, 901 (10th Cir. 1987).
As discussed in the preceding section, a rational jury could have believed
Arvin’s actions were in self-defense. This court has recognized that involuntary
manslaughter “can occur in circumstances that would support a defense of self
defense.” Begay, 833 F.2d at 901 (quoting United States v. Manuel, 706 F.2d
908, 915 (9th Cir. 1983)); see also United States v. Browner, 889 F.2d 549, 555
(5th Cir. 1989) (holding that both involuntary manslaughter and self-defense
instructions are proper when there is evidence that the killing was accidental);
United States v. Iron Shield, 697 F.2d 845, 848 (8th Cir. 1983) (upholding district
court’s decision to instruct on both involuntary manslaughter and self-defense).
“If the defendant attempts to use nondeadly force, [but does so in a manner that
results in death], then both involuntary manslaughter and self-defense instructions
would be warranted.” Begay, 833 F.2d at 901 (quoting Manuel, 706 F.2d at 915).
The jury could have concluded from the evidence presented at trial that Arvin’s
actions constituted the criminally negligent exercise of nondeadly force.
Consequently, it was error for the district court to refuse to instruct the jury on
this theory of involuntary manslaughter.
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B
Alternatively, defendant argues the jury could have found that, although his
actions resulted in the death of Russell John, they did not constitute a felony. We
reject this claim. Assault resulting in serious bodily injury is a felony, see 18
U.S.C. § 113(a)(6); 5 it is also a general intent crime. It is not necessary that
defendant have assaulted the victim with the intent to do serious bodily harm—the
resulting serious bodily injury coupled with the general intent to assault is
sufficient to satisfy the elements of the felony. See United States v. Fitzgerald,
882 F.2d 397, 399 (9th Cir. 1989) (holding that specific intent is not element of
assault resulting in serious bodily injury); United States v. Lewis, 780 F.2d 1140,
1142-43 (4th Cir. 1986) (“Section [113(a)(6)] says nothing about intent. In the
absence of an explicit statement that a crime requires specific intent, courts often
5
Section 113(a)(6) states:
Whoever, within the special maritime and territorial jurisdiction of the
United States, is guilty of an assault shall be punished as follows:
***
(6) Assault resulting in serious bodily injury, by a fine under this title or
imprisonment for not more than ten years, or both.
“Serious bodily injury” is defined as “bodily injury which involves—(A) a substantial risk
of death; (B) extreme physical pain; (C) protracted and obvious disfigurement; or (D)
protracted loss or impairment of the function of a bodily member, organ, or mental
faculty.” See § 113(b)(2) (adopting the definition of “serious bodily injury” codified at
18 U.S.C. § 1365(g)(3)).
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hold that only general intent is needed.”); United States v. Knife, 592 F.2d 472,
482 (8th Cir. 1979) (“Section [113(a)(6)] requires only that the assault shall have
resulted in serious bodily harm.”) (citing United States v. Eagle, 586 F.2d 1193,
1196 (8th Cir. 1978)).
We agree that a rational jury could find that the blows inflicted by
defendant did not cause serious bodily injury and, by definition, did not cause
Russell’s death. Were this the case, however, the proper verdict would be
acquittal, not involuntary manslaughter. See 2 Wayne R. LaFavre & Austin W.
Scott, Jr., Substantive Criminal Law § 7.12(c) (1986) (“With manslaughter, as
with other crimes defined in terms of cause and result, the defendant’s conduct . .
. must be the ‘legal cause’ of the death.”) If, on the other hand, the jury believed
that the blows contributed to the victim’s death, the underlying assault would
necessarily have caused “serious bodily injury.” The assault would then be a
felony under 18 U.S.C. § 113(a)(6) and defendant would not be entitled to an
involuntary manslaughter instruction on a misdemeanor-manslaughter theory.
IV
Also before us is defendant’s next claim that the district court’s instruction
on aiding and abetting was erroneous. Whether a jury has been properly
instructed is a question of law that we review de novo. See United States v. Voss,
82 F.3d 1521, 1529 (10th Cir.), cert. denied, 117 S. Ct. 226 (1996). Our
determination is based not on whether the instruction was faultless but whether
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the jury was misled in any way and whether it had a proper understanding of the
issues. See id.
The district court instructed the jury that:
[I]f another person is acting under the direction of the defendant, or
if the defendant joins another person and performs acts—acts with
the intent to commit a crime, then the law holds the defendant
responsible for the acts and conduct of such other persons, just as
though the defendant had committed the acts or engaged in such
conduct.
Notice, however, that before the defendant may be held
criminally responsible for the acts of others, it is necessary that the
accused deliberately associate himself in some way with the crime
and participate in it with the intent to bring about the crime.
Of course, mere presence at the scene of a crime and
knowledge that a crime is being committed are not sufficient to
establish that the defendant either directed or aided and abetted the
crime, unless you find beyond a reasonable doubt that the defendant
was a participant and not merely a knowing spectator.
In other words, you may not find the defendant guilty unless
you find beyond a reasonable doubt that every element of the crime
charged in the indictment and as defined in these instructions was
committed by some other person or persons and that the defendant
voluntarily participated in its commission with the intent to violate
the law.
R., Vol. XII, at 353-54. Defendant objected to the language of this instruction,
requesting instead that the jury be instructed that “[i]t is not enough that Arvin
Benally merely associated with Jonathan Benally, or was present at the scene of
the crime, or unknowingly or unintentionally did things that were helpful to the
principal.” Appellant’s Br. at 32. Defendant argues that the charge given to the
jury failed to instruct that defendant’s “unknowing or unintentional help to
Jonathan Benally did not constitute aiding and abetting.” Id. We reject that view.
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The district court’s instruction clearly required the jury to find that defendant
deliberately associated himself with the crime and participated with the requisite
intent. As such, the instruction is a proper statement of the law and is not
misleading.
V
We now turn to defendant’s assertion that the district court erred in
refusing to suppress statements he made during two interviews with police
investigators on October 5, 1995. Defendant urges that the statements were made
during custodial interrogations before he had been informed of his rights under
Miranda v. Arizona, 384 U.S. 436 (1966), and that his statements were
involuntary.
The ultimate inquiry in deciding whether a suspect is in custody for
purposes of administering Miranda warnings “is simply whether there is a ‘formal
arrest or restraint on the freedom of movement’ of the degree associated with a
formal arrest.” California v. Beheler, 463 U.S. 1121, 1125 (1983) (per curiam)
(quoting Oregon v. Mathiason, 429 U.S. 492, 495 (1977) (per curiam)); see
United States v. Chalan, 812 F.2d 1302, 1306 (10th Cir. 1987). “If, from an
objective viewpoint, someone in [defendant’s] position would reasonably believe
her freedom of action had been curtailed to a ‘degree associated with a formal
arrest,’ then she would be held in custody during the interrogation.” United
States v. Griffin, 7 F.3d 1512, 1518 (10th Cir. 1993) (quoting Beheler, 463 U.S.
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at 1125 and Berkemer v. McCarty, 468 U.S. 420, 440 (1984)) (footnote omitted).
Because the determination of custody is “necessarily fact intensive,” we review
the district court’s determination that defendant was not in custody for purposes
of Miranda for clear error. See United States v. Glover, 104 F.3d 1570, 1578
(10th Cir. 1997). 6 On review of the record we do not see clear error.
On the morning of October 5, 1995, investigating Officer Tolbertson spoke
to Julia Benally, the defendant’s mother. He requested that she come to the
Navajo Department of Safety and that she bring any members of the household
present the night Russell was killed. (At the suppression hearing, Tolbertson
testified that he had made the request because the Benally’s house was near the
hill where the victim’s body was found and he was hoping that someone living
there had seen or heard something helpful to the investigation.) Arvin Benally,
accompanied by his mother, went to the investigator’s office. The subsequent
interview lasted twenty to thirty minutes and was conducted in an interview room
by plain-clothes investigators. Following the interview, defendant went home
with his mother.
Defendant points to his mother’s testimony that she felt compelled to attend
the initial interview. He contends that, by demanding his mother’s presence at the
police station, Officer Tolbertson curtailed his freedom of action as well. Upon
We note that the parties do not challenge this circuit’s standard of review for “in
6
custody” determinations.
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consideration of that testimony, the district court found that it had “not received
evidence of the nature that would indicate that Arvin himself heard anything other
than his mom saying that they needed to go to the police station. I don’t believe
that that rises to the level of coercive police action.” Supp. R. at 132. Although
the testimony presented at the suppression hearing was not entirely consistent,
Arvin conceded he was not present when Tolbertson spoke with Julia Benally, and
we determine that the district court’s conclusion was not clearly erroneous.
Later that day, the investigators asked Arvin to return to their offices.
When he did so, Arvin was told that his earlier statement did not make sense. The
investigators testified that Arvin was informed of his Miranda rights and
subsequently produced a statement admitting that he had been present at Russell’s
murder. Arvin was at the police station for approximately one-and-a-half hours.
Defendant insists he was interrogated during this second interview prior to
receiving the Miranda warning. There is adequate evidence to the contrary. At
the hearing on the motion to suppress, Officer Tolbertson testified that the
defendant was informed of his rights before making his statement. On
independent evaluation of the record, we conclude that defendant was properly
informed of his rights before this second interview.
Nor do we agree that defendant’s statements made at both interviews were
involuntary. Whether a confession is coerced depends upon several factors: (1)
the age, intelligence, and education of the defendant; (2) the length of the
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detention; (3) the length and nature of the questioning; (4) whether the defendant
was advised of her constitutional rights; and (5) whether the defendant was
subjected to physical punishment. Glover, 104 F.3d at 1579 (citing Schneckloth
v. Bustamonte, 412 U.S. 218, 226 (1973)). This determination is based on the
totality of the surrounding circumstances. No single factor is determinative. Id.
“[I]t is the duty of this court ‘to examine the entire record and make an
independent determination of the ultimate issue of voluntariness.’” Id. (quoting
Davis v. North Carolina, 384 U.S. 737, 741-42 (1966)).
On review of the record we conclude that defendant’s actions were
voluntary. The lack of evidence of susceptibility to coercion, the relatively short
duration of the two interviews, the non-coercive environment in which he was
interviewed, Officer Tolbertson’s careful and methodical explanation of
defendant’s Miranda rights to him, which included defining the term “coercion”
for him, and the interviewing officers denial that defendant was threatened
collectively belie a claim of coercion.
VI
Defendant takes issue with the district court’s refusal to suppress evidence
obtained by allegedly coercive means. Shortly after Arvin’s second interview,
Officer Tolbertson requested that defendant provide him with the clothes that he
had worn on the night Russell was killed; defendant persists that he felt that he
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did not have a choice but to do so, and thus the evidence should have been
suppressed.
We review the district court’s denial of defendant’s motion to suppress for
clear error, considering the evidence “in the light most favorable to the district
court’s ruling.” United States v. Soto, 988 F.2d 1548, 1551 (10th Cir. 1993).
Defendant brings two arguments in support of this claim. We are unpersuaded by
either. His argument that because the preceding interviews were coercive, he
could not have voluntarily consented to the seizure of his clothing fails on our
prior conclusion that the interviews were uncoerced. His claim that giving the
clothing to Officer Tolbertson was not voluntary because he was not informed of
his right to refuse fails as well. The failure to inform defendant that he had the
right to refuse a requested production is not, by itself, determinative of
coerciveness. See United States v. Manuel, 992 F.2d 272, 275 (10th Cir. 1993).
Although Arvin testified at the suppression hearing that he did not feel that he
had a choice, Officer Tolbertson testified that he merely asked Arvin for the
clothing and Arvin voluntarily complied. Considering the evidence in the light
most favorable to the district court’s decision we do not see clear error.
VII
Because we have concluded that the district court erred in refusing to
instruct the jury on self-defense and on the lesser included offense of involuntary
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manslaughter, we REVERSE defendant’s conviction and REMAND this case for a
new trial. We affirm as to all remaining issues.
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No. 96-2291, U.S. v. Arvin Benally
Judge McWillliams dissents.
Russell John was beaten to death by repeated blows from “fists” and “kicks”
delivered to his face and head area. As a result of the beating, his facial features were
described as being “beyond recognition.”
Arvin Benally and his nephew, Jonathan Benally, were jointly charged in a one-
count indictment with the first degree murder of Russell, in violation of 18 U.S.C. §§
1111(a) and 1153. Each was also charged therein with aiding and abetting the other in
violation of 18 U.S.C. § 2. Arvin Benally’s motion for a separate trial was granted.
Jonathan Benally was tried first, and a jury convicted him of second degree
murder. On appeal, we have this date affirmed his conviction therefor. In so doing, we
held, inter alia, that the district court did not err in refusing to instruct the jury on
involuntary manslaughter. In thus holding, we observed that there was “no evidence to
support a rational jury finding that defendant [Jonathan Benally] was acting in self-
defense, even if imperfectly or unlawfully.”
In a subsequent trial, Arvin Benally was convicted by a jury of voluntary
manslaughter. On appeal, the majority of this panel now reverses Arvin Benally’s
conviction on the ground that the district court erred in not giving an instruction on self-
defense and on involuntary manslaughter. I disagree.
Certainly, the overwhelming evidence, in my view, is that the Benallys, and not
Russell, were the aggressors. Be that as it may, accepting Arvin Benally’s testimony at
trial that Russell struck the “first blow,” it is abundantly clear to me that, as a matter of
law, “excessive force” was thereafter used by the Benallys. I disagree with the
statement in the majority opinion that “. . . if Arvin’s [Benally’s] testimony were credited,
the jury could reasonably have believed that the force Arvin used in self-defense was
reasonable in the light of the threat presented.” In this general connection, it should be
remembered that Arvin Benally, in addition to being charged as a “principal,” was also
charged with aiding and abetting his nephew, Jonathan Benally. If he was so aiding and
abetting, and certainly the evidence viewed in a light most favorable to the government
indicated that he was, then Jonathan Benally’s acts were Arvin’s acts. Further, the fact
that Russell was beaten “to a pulp,” so to speak, causing death, suggests to me, and
strongly so, that the force used by Arvin and his nephew was, as a matter of law,
unreasonable and excessive. See United States v. Scalf, 725 F.2d 1271 (10th Cir. 1984),
where we approved an instruction to the effect that the force which may be justified when
acting in self-defense must be reasonable under the circumstances to save life or avert
serious bodily harm.
If an instruction on self-defense was not required, it follows that an instruction on
involuntary manslaughter was not required. See United States v. Jonathan Benally, ____
F.3d ____ (10th Cir. 1998), decided this date, and United States v. Hatatley, 130 F.3d
1399 (10th Cir. 1997).
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