Argued and Submitted November 9, 2012 Seattle, Washington, Amended August 13, 2013
Appeal from the United States District Court for the Eastern District of Washington, D.C. No. 2:10-cr-00001-EFS-1 Edward F. Shea, District Judge, Presiding
Peter S. Schweda (argued), Waldo, Schweda and Montgomery, P.S., Spokane, WA for the Appellant
Matthew F. Duggan (argued), Assistant United States Attorney, Spokane, WA for the Appellee
Before: W. FLETCHER and FISHER, Circuit Judges, and QUIST, Senior District Judge.[*]
ORDER AND AMENDED OPINION
This court's opinion, filed July 19, 2013, is hereby amended as follows:
At slip opinion page 16-17, delete the following sentence: <We held in both cases that evidence of prior violent acts of the victim that were known to the defendants should have been admitted. James, 169 F.3d at 1214–15; Saenz, 179 F.3d at 688–89.>
Replace that sentence with the following paragraph:
<In James, the defendant had been allowed to testify about prior violent conduct by the victim of which she had been aware. The dispute on appeal was whether the defendant could reinforce her testimony by introducing court documents, a presentence report, and police reports describing the victim's prior conduct. James, 169 F.3d at 1212–13. We held that the district court had abused its discretion in excluding that evidence. Id. at 1214–15. In Saenz, the district court held as a matter of law that the defendant could not testify about prior violent acts by the victim of which he had been aware. Saenz, 179 F.3d at 688. We reversed based on James. We wrote, "[W]e assumed [in James] that, in a self-defense case, a defendant may show her state of mind at the time of an attack by testifying that she knew about a victim's past acts of violence." Id. at 689.>
W. FLETCHER, Circuit Judge
Rudy Martin Garcia was tried for first-degree murder after he shot David McCraigie. The jury was instructed on the elements of first- and second-degree murder and of voluntary and involuntary manslaughter. The jury convicted Garcia of involuntary manslaughter and otherwise acquitted him. Garcia appeals his conviction. He contends that the version of the Ninth Circuit model jury instruction for involuntary manslaughter given by the district court was defective in that it failed to tell the jury that "gross negligence, " defined as "wanton or reckless disregard for human life, " was required for a conviction. We agree that the jury instruction allowed the jury to convict Garcia without finding an essential element of involuntary manslaughter. We therefore reverse Garcia's conviction.
Garcia shot McCraigie on the Colville Indian Reservation in eastern Washington during the evening of November 4, 2009. Garcia and McCraigie had been friends since childhood. Garcia and another friend had been drinking at Garcia's apartment, planning to go hunting the next day, when they ran out of beer. They drove Garcia's Jeep two blocks to the McCraigie house where a drinking party was in progress. An altercation between Garcia and McCraigie began inside the house and spilled out onto the sidewalk. A point-blank shot from Garcia's hunting rifle seriously wounded McCraigie. McCraigie died a few days later.
A. Evidence Admitted at Trial
The prosecution and defense presented starkly different versions of the events leading up to the shooting and of the shooting itself. The prosecution version was that after the fight spilled out onto the sidewalk, McCraigie chased Garcia from the property. Garcia then went to his apartment, retrieved his hunting rifle, returned to the house, and intentionally shot McCraigie. One prosecution witness testified that he heard Garcia say he was going to get his gun. Four prosecution witnesses reported hearing from someone else that Garcia had gone to get a gun. Two prosecution witnesses reported seeing McCraigie grab the barrel of Garcia's rifle. Two other prosecution witnesses did not see the shot that hit McCraigie. None of the prosecution witnesses reported seeing a gun in McCraigie's hand that night. Three of the prosecution witnesses testified that they had never seen McCraigie with a firearm.
The defense version was that Garcia had acted in self-defense and that the shooting itself was an accident. Garcia testified that McCraigie and two others at the party started a fight with him. He testified that he had seen McCraigie with a pistol earlier that night. He testified further that McCraigie tried to hit him on the head with the pistol. He reported being chased and pushed from the house.
Garcia testified that he ran to his car and got in, but his girlfriend had taken his keys. He then grabbed his hunting rifle from the back seat and got out of the car. McCraigie kept coming toward him. Garcia testified that he backed up and fired a warning shot in the air. When they were about six feet apart, McCraigie ran at him. Garcia testified that he "flinch[ed] up, " expecting a punch, but McCraigie grabbed the barrel of the rifle. There was a struggle, and the gun went off, inflicting the wound that eventually killed McCraigie.
Jordan Lynn, Garcia's girlfriend, testified that McCraigie and two others were beating up Garcia, and that she saw McCraigie with something in his hand that she thought was a gun. She testified that she saw McCraigie grab the rifle barrel and that the rifle then discharged. She also testified seeing one of the prosecution witnesses pick something up from beside McCraigie after he was shot.
The defense introduced text messages sent by one of the prosecution witnesses immediately after the shooting. Unbeknownst to the witness, he had mistakenly sent his texts to a stranger, a fourteen-year old girl. The girl responded several times before ...