TROY DONOVAN LEWIS, PETITIONER V. UNITED STATES OF AMERICA No. 90-7275 In The Supreme Court Of The United States October Term, 1990 On Petition For A Writ Of Certiorari To The United States Court Of Appeals For The Ninth Circuit Brief For The United States In Opposition OPINION BELOW The memorandum opinion of the court of appeals (Pet. App. 1-3) is not reported. JURISDICTION The judgment of the court of appeals was entered on November 30, 1990. The petition for a writ of certiorari was filed on February 28, 1991. The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1). QUESTIONS PRESENTED 1. Whether the district court's decision to exclude certain portions of petitioner's post-arrest statement violated either the rule of completeness of Fed. R. Evid. 106 or the "state of mind" exception of Fed. R. Evid. 803(3). 2. Whether the district court's evidentiary rulings violated petitioner's right not to testify. STATEMENT After a jury trial in the United States District Court for the District of Arizona, petitioner was convicted of voluntary manslaughter, in violation of 18 U.S.C. 1112. He was sentenced to 40 months' imprisonment, to be followed by three years' supervised release. The court of appeals affirmed. Pet. App. 1-3. 1. The evidence at trial, which is not in dispute, showed that on October 10, 1989, petitioner stabbed to death Gerard Walker, a 17-year old Gila River Indian, on the Gila River Indian Reservation in Arizona. Petitioner inflicted four knife wounds to Walker's head and three to his chest. Two of the chest wounds were fatal. The killing occurred during a fight between petitioner and Walker, but Walker was unarmed. Gov't C.A. Br. 3-4. The fight stemmed from events that occurred the previous day. Petitioner, who lived next door to Walker, asked Walker's 12-year old sister, Molly, to come to petitioner's house. She declined because she feared petitioner. After she told Walker of peitioner's advance, Walker sent his sister to another house and told petitioner to leave Molly alone. Id. at 4. Later that evening Walker and several friends went to the house of Dan Oliver, petitioner's uncle. Petitioner was not there at the time, but Walker and his friends, one of whom was armed with a baseball bat, struck several occupants of the house. Walker warned that he would also beat petitioner. Id. at 4-5; Pet. 4-5. Petitioner returned to the house a few minutes later. At about 3:00 a.m. on October 10, petitioner and his uncle went outside the house to get some air. Walker and two friends then walked by the house. As they did so, petitioner challenged Walker to a fight. Unbeknownst to Walker, both petitioner and his uncle were armed with knives. After an exchange of words and some shoving, petitioner attempted to go into his house, but Walker blocked his way and slapped him against a wall. Then, as Walker was walking away, petitioner grabbed Walker's shirt, spun him around, and stabbed him repeatedly. After falling to the ground, Walker struggled to his feet and staggered away, ultimately collapsing and dying near the street. After Walker's mother confronted petitioner, he fled. Gov't C.A. Br. 5-6. Petitioner was finally located and arrested some 12 hours later. After receiving Miranda warnings, he gave a statement to a Bureau of Indian Affairs detective. Petitioner first equivocated about having stabbed Walker, but he eventually admitted that he had done so. He said that Walker and one of his friends had tried to "jump" petitioner and that he did not remember cutting Walker because Walker and the other youth were "jumping" petitioner. Pet. C.A. Rec. Exc. 6. When a detective asked petitioner if he had acted in self-defense, petitioner responded, "Yes. No(.) (I)n a way. I have four brothers and four sisters living there. I didn't want anyone fucking with them. They should have stayed on their own side." Ibid. 2. Petitioner was indicted on a charge of second degree murder, in violation of 18 U.S.C. 1111. On the morning of trial the government indicated it would introduce petitioner's admission that he had stabbed Walker as a statement against interest, pursuant to Fed. R. Evid. 804(3). However, the government moved in limine to exclude the remaining, inadmissible portions of petitioner's statement. The court granted the government's motion. On direct examination, the BIA detective testified that, in response to the detective's inquiry whether petitioner had stabbed Walker, petitioner had made basically three statements toward that type of a question. One was no, that they had jumped him. Two was yes, that you could say that. And third was he -- in a way. It was like that. 1 R. 229. The defense then sought to admit petitioner's entire statement under the rule of completeness, pursuant to Fed. R. Evid. 106, or to show petitioner's state of mind, pursuant to Fed. R. Evid. 803(3). The district court refused, thus excluding a series of questions and answers in which petitioner narrated what happened from the time he saw Walker near his uncle's backyard until after he stabbed him. Gov't C.A. Br. 9; Pet. 14-15. Although petitioner had been indicted for second-degree murder, the jury convicted him of the lesser included offense of voluntary manslaughter. 3. On appeal, petitioner renewed his claim that the additional portions of his statement should have been admitted. The court of appeals rejected that claim in an unpublished opinion. First, the court stated the general rule that Rule 106 requires admission of additional portions of a statement only if the failure to admit those portions would distort the meaning of the portion admitted or would exclude substantially exculpatory portions of the statement. Pet. App. 2. The court below found that, contrary to petitioner's claim, the admitted portion of the statement "did provide the context for (petitioner's) admission to the stabbing," because the admitted portion "included (petitioner's) contention that he had been 'jumped.'" Ibid. In the court's view, the excluded portions would therefore have been "cumulative, and not necessary to avoid misleading the jury." Id. at 2-3. As a result, the court of appeals held that the district court had not abused its discretion under Rule 106 in refusing to admit the entire statement. Second, the court of appeals rejected petitioner's Fed. R. Evid. 803(3) argument. The court observed that the Rule is limited to declarations of condition, so that a statement that "I'm scared" is admissible, while a statement of belief (such as "I'm scared because X threatened me") is not. Pet. App. 3. The court found that petitioner at no point in his statement "describe(d) his mental condition or his feelings at the time of the fight; he merely described the circumstances preceding and accompanying the altercation as he remembered them." Ibid. As a result, the court held that the rest of the statement was not admissible. Ibid. Finally, the court concluded that because the district court did not err in excluding portions of petitioner's statement, his Fifth Amendment privilege against self-incrimination was not violated because "he may have felt it necessary to take the stand because of the court's rulings." Pet. App. 3. ARGUMENT 1. Petitioner first argues that the district court abused its discretion under Rule 106 in admitting only a portion of his post-arrest statement. /1/ Petitioner relies on Beech Aircraft Corp. v. Rainey, 488 U.S. 153 (1988), where the Court held that "when one party has made use of a portion of a document, such that misunderstanding or distortion can be averted only through presentation of another portion, the material required for completeness is ipso facto relevant and therefore admissible." 488 U.S. at 172. This Court's decision in Beech Aircraft does not support petitioner's argument, because there was no possibility of "misunderstanding or distortion" of the portion of the statement that was admitted. Petitioner's statement that he had stabbed Walker was simply his admission to having committed a physical act -- an admission of an act that his own counsel, in his opening statement, conceded petitioner had committed. 1 R. 102. That statement conveyed no information about his motive or intent. Therefore, admission of that statement -- without more -- would have led to no "misunderstanding or distortion," and admission of the balance of his statement solely to address the issue of intent was unnecessary under the rule of completeness. Even if petitioner were correct that admission of his statement that he had stabbed Walker would have been error if no other portion of his statement had been admitted, petitioner's argument would still fail. As the court of appeals observed, the detective testified not only that petitioner stated that he had stabbed Walker, but also that petitioner stated that he had been "jumped." Therefore, the evidence that was admitted conveyed both petitioner's contention that he acted in self-defense and his admission to the physical act of stabbing. The court of appeals' conclusion that, on the basis of the record in this case, admission of further evidence would have been merely cumulative, and thus unnecessary to cure any distortion or misunderstanding, was correct and does not warrnt further review. Because exclusion of the portion of petitioner's statement at issue did not cause any distortion or misunderstanding, petitioner's reliance (Pet. 12-13) on United States v. Walker, 652 F.2d 708 (7th Cir. 1981), and United States v. Marin, 669 F.2d 73 (2d Cir. 1982), is misplaced. In Walker, unlike here, the court of appeals found that the "incomplete presentation" of the defendant's prior statement -- in that case, testimony at a prior trial -- "may have painted a distorted picture." 652 F.2d at 713. Indeed, the court that decided Walker recognized in a later case that a statement that may be merely helpful to the jury but not necessary to explain the admitted portion does not implicate Rule 106. See United States v. Sweiss, 814 F.2d 1208, 1212 (7th Cir. 1987). In Marin, the Second Circuit affirmed a district court decision that excluded portions of the defendant's statement, notwithstanding the fact that the government introduced other portions of the same statement at trial. The court held that the excluded portions did not have to be admitted, because the government's presentation was not misleading. 669 F.2d at 84-85. The Second Circuit in Marin thus accepted the principle relied on by the Ninth Circuit in this case -- that a statement need not be admitted in its entirety if admission of a portion would not be misleading. 2. Petitioner also argues (Pet. 16-19) that he should have been able to introduce the remainder of his statement under Fed. R. Evid. 803(3) in cross examining the BIA detective, because, in petitioner's view, the statement showed his state of mind at the time of the crime. /2/ He claims that the decision below conflicts with two decisions from the Second Circuit. In fact, there is no conflict and no reason for further review of petitioner's claim. In the first place, the two Second Circuit decisions on which he relies -- United States v. Lawal, 736 F.2d 5 (1984), and United States v. DiMaria, 727 F.2d 265 (1984) -- do not support his contention. In DiMaria the court reversed a conviction because the trial court had excluded a defendant's statement concerning his intent in coming to the scene of the crime. The court of appeals held that, on the facts of that case, that testimony was relevant to the defendant's intent at the time of the alleged offense. Id. at 270-271. At the same time, however, the court said that Rule 803(3) clearly bans a statement of memory or belief as to an event that had occurred in the past. Ibid. And in Lawal, the court repeated that point; the court said that statements of what a defendant or someone else had done in the past do not fall within Rule 803(3). 736 F.2d at 8. Here the court of appeals examined petitioner's statement and found that the excluded portions did not relate petitioner's state of mind at the time of the crime, but rather recounted events that occurred just before and after the crime and that purported to show that Walker was threatening him at the time he stabbed Walker. Petitioner's statements concerning those events thus were relevant, if at all, only as proof that Walker was in fact threatening petitioner -- i.e., as "a statement of memory or belief to prove the fact remembered or believed" expressly excluded by Rule 803(3). /3/ Rule 803(3) was designed precisely to exclude statements such as those offered by petitioner, which would serve simply to present to the jury his version of events without the safeguard of cross-examination. See United States v. Willis, 759 F.2d 1486, 1501 (11th Cir.), cert. denied, 474 U.S. 849 (1985). 3. Finally, petitioner asserts (Pet. 19-22) that the erroneous rulings by the trial court forced him to take the stand in his own defense in violation of his right not to testify. As the court of appeals held, petitioner's evidentiary claims were properly rejected. Therefore, petitioner was not improperly compelled to testify. See Harrison v. United States, 392 U.S. 219, 222 (1968). CONCLUSION The petition for a writ of certiorari should be denied. Respectfully submitted. KENNETH W. STARR Solicitor General ROBERT S. MUELLER, III Assistant Attorney General LOUIS M. FISCHER Attorney MAY 1991 /1/ Fed. R. Evid. 106 provides: When a writing or recorded statement or part thereof is introduced by a party, an adverse party may require the introduction at that time of any other part or any other writing or recorded statement which ought in fairness to be considered contemporaneously with it. /2/ Fed. R. Evid. 803(3) provides that the following statements are not excluded by the hearsay rule: A statement of the declarant's then existing state of mind, emotion, sensation, or physical condition (such as intent, plan, motive, design, mental feeling, pain, and bodily health), but not including a statement of memory or belief to prove the fact remembered or believed unless it relates to the execution, revocation, identification or terms of declarant's will. /3/ Beyond that, as in Lawal (see 736 F.2d at 9), the substance of petitioner's self-defense claim was communicated to the jury, because the BIA detective reported petitioner's claims that Walker and a friend had attacked petitioner. There also was strong countervailing proof against petitioner's claim of self-defense, particularly evidence that Walker was unarmed and had started to walk away when petitioner grabbed Walker, spun him around, and repeatedly struck him with a knife. Hence, even if petitioner were correct that the remainder of his statement should have been admitted, the failure to do so at most constituted harmless error.