United States v. Tony, 2020 WL 413445 (10th Cir. January 27, 2020) (NM): A remarkable reversal of a first degree murder conviction by our Colorado FPD colleague Josh Lee. The panel held the district court incorrectly excluded evidence that the alleged victim used methamphetamine before he fought with Tony because its reasons for doing so were unsupported by the record.
Tony admitted that he killed the victim but denied it was pre-meditated because he was defending himself. The district court allowed him to present evidence of the victim’s erratic and violent behavior. But it refused to let Tony offer evidence that the victim had been using methamphetamine during the fight and that methamphetamine caused his aggressive behavior. The court said Tony had not identified a permissible purpose for the methamphetamine evidence.
The panel disagreed. Tony had identified a proper purpose: the victim’s hostile actions toward Tony were fueled by methamphetamine. The panel also discussed why it could not affirm the conviction on alternative grounds. If this evidence was lacking a foundation in expert testimony it might be inadmissible. But here, the panel said, a reasonable jury would not need an expert to conclude the victim had been under the influence of methamphetamine. There was evidence that the victim had methamphetamine on him and in his bloodstream. Also lay witnesses "might have been able to testify that he was high." (emphasis added). Tony would not have needed an expert to show that methamphetamine causes erratic violent behavior.
The panel ordered the district court to vacate the conviction and conduct a new trial because its error was not harmless. It dismissed the government’s contention that Tony still was able to argue self-defense based on the victim’s erratic and violent behavior. The panel said the government did not address how the methamphetamine evidence might have affected Tony’s insistence that his actions were not premeditated. Without an argument on premeditation, the government could not satisfy its harmlessness burden.
For appellate types: It is worth noting that the panel declined to order a limited remand for the district court to decide the admissibility of the methamphetamine evidence under Fed.R.Evid. 403. It explained that would "create a dilemma for the district court, which would have an overwhelming temptation to rationalize the exclusion of evidence under Rule 403."
Tony admitted that he killed the victim but denied it was pre-meditated because he was defending himself. The district court allowed him to present evidence of the victim’s erratic and violent behavior. But it refused to let Tony offer evidence that the victim had been using methamphetamine during the fight and that methamphetamine caused his aggressive behavior. The court said Tony had not identified a permissible purpose for the methamphetamine evidence.
The panel disagreed. Tony had identified a proper purpose: the victim’s hostile actions toward Tony were fueled by methamphetamine. The panel also discussed why it could not affirm the conviction on alternative grounds. If this evidence was lacking a foundation in expert testimony it might be inadmissible. But here, the panel said, a reasonable jury would not need an expert to conclude the victim had been under the influence of methamphetamine. There was evidence that the victim had methamphetamine on him and in his bloodstream. Also lay witnesses "might have been able to testify that he was high." (emphasis added). Tony would not have needed an expert to show that methamphetamine causes erratic violent behavior.
The panel ordered the district court to vacate the conviction and conduct a new trial because its error was not harmless. It dismissed the government’s contention that Tony still was able to argue self-defense based on the victim’s erratic and violent behavior. The panel said the government did not address how the methamphetamine evidence might have affected Tony’s insistence that his actions were not premeditated. Without an argument on premeditation, the government could not satisfy its harmlessness burden.
For appellate types: It is worth noting that the panel declined to order a limited remand for the district court to decide the admissibility of the methamphetamine evidence under Fed.R.Evid. 403. It explained that would "create a dilemma for the district court, which would have an overwhelming temptation to rationalize the exclusion of evidence under Rule 403."
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