Issues in Homicide Case Addressed
U.S. v. Visinaiz, 2005 WL 3065950 (10th Cir.Nov 16, 2005)
Instruction issues: Jury properly instructed on heat of passion, and it was proper to have the jury consider the second degree murder charge before the lesser offense of voluntary manslaughter. Court chides counsel for challenging involuntary manslaughter instruction on appeal (instruction distinguishing recklessness for M2 from IM recklessness)
when counsel approved that instruction as an alternative to one originally to be given; 10th finds it invited error but also finds that in conjunction with imperfect self-defense instruction to be no error.
Prosecutor’s closing: plain error review because not objected to; court found issues meritless. Jury selection: while generally improper to have court personnel conduct peremptory challenge process with parties, and inadvisable for the trial court in a Conway-esque fashion to regale the venire with the judge's grand achievements while the parties select the jury post-voir dire, defendant was not prejudiced. Evidence :D’s proffered evidence regarding V (prior DUI’s and incidents of intoxication) was inadmissable specific instances of conduct under R405(a); not abuse of discretion to exclude expert report when doc not there to testify; other issues not clear because not enough facts in opinion. ......V’s son is a victim under statute and cannot be excluded from courtroom after his testimony in completed.....Although D sentenced before Booker, because trial court sentenced D stating that the guidelines were not being applied in a mandatory fashion, Booker was not implicated.
Instruction issues: Jury properly instructed on heat of passion, and it was proper to have the jury consider the second degree murder charge before the lesser offense of voluntary manslaughter. Court chides counsel for challenging involuntary manslaughter instruction on appeal (instruction distinguishing recklessness for M2 from IM recklessness)
when counsel approved that instruction as an alternative to one originally to be given; 10th finds it invited error but also finds that in conjunction with imperfect self-defense instruction to be no error.
Prosecutor’s closing: plain error review because not objected to; court found issues meritless. Jury selection: while generally improper to have court personnel conduct peremptory challenge process with parties, and inadvisable for the trial court in a Conway-esque fashion to regale the venire with the judge's grand achievements while the parties select the jury post-voir dire, defendant was not prejudiced. Evidence :D’s proffered evidence regarding V (prior DUI’s and incidents of intoxication) was inadmissable specific instances of conduct under R405(a); not abuse of discretion to exclude expert report when doc not there to testify; other issues not clear because not enough facts in opinion. ......V’s son is a victim under statute and cannot be excluded from courtroom after his testimony in completed.....Although D sentenced before Booker, because trial court sentenced D stating that the guidelines were not being applied in a mandatory fashion, Booker was not implicated.
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