United States v. Redbird.

No. 22-6055. 7/10/2023. W.D.Okla. Judge Moritz. Premeditated First-Degree Murder—Assault Resulting in Serious Bodily Injury—Self-Defense—Fed. R. Evid. 404(a)(2)(B)—Testimony on Propensity for Violence—Failure to Object on Grounds Raised on Appeal—Plain Error Review—Waiver of Evidentiary Challenge.

July 10, 2023

Tongkeamah and his girlfriend, Roughface, lived in a carport attached to an abandoned home. Redbird arrived at the carport one night and hit both occupants on the head with a crowbar several times, killing Tongkeamah and seriously wounding Roughface. Redbird was charged with premeditated first-degree murder (and, alternatively, second-degree murder) as to Tongkeamah and assault resulting in serious bodily injury as to Roughface. At trial, Redbird maintained that he acted in self-defense. Redbird testified that he carried a crowbar for protection that night because he and Tongkeamah had had several increasingly tense interactions in the previous weeks, and he had to walk through an area where he might run into Tongkeamah. Redbird said that while walking by the carport, he decided to ask Tongkeamah about reports that he had murdered Redbird’s close childhood friend Kaudlekaule the year before. Redbird claimed that when he asked about the reports, Tongkeamah began searching for an ax to attack him, so Redbird hit Tongkeamah with the crowbar, then hit Roughface because she appeared to be grabbing a weapon, and then hit Tongkeamah a second time. The defense was allowed to question Special Agent Ware to confirm that Tongkeamah had violent tendencies, including that he routinely beat Roughface and was a suspect in Kaudlekaule’s murder. On redirect, the government asked Ware whether he knew that Redbird possessed “the same trait for violence” as Tongkeamah. Defense counsel objected, and the district court overruled the objection. The government then elicited testimony from Ware about Redbird’s propensity for violence, reputation in the community as a violent person, and prior conviction for a violent felony. After Redbird later confirmed his knowledge of Tongkeamah’s propensity and reputation for violence, the government cross-examined Redbird about his prior violent felony conviction and an incident in which he had stabbed someone. The jury convicted Redbird of first-degree murder and assault resulting in serious bodily injury. The district court imposed a mandatory life prison term for the murder charge and a consecutive 10-year prison term for the assault charge.

On appeal, Redbird argued that the district court improperly admitted Ware’s testimony that Redbird has a propensity for violence under Fed. R. Evid. 404(a)(2)(B). He maintained that this rule applies only if the defendant offers evidence of a victim’s character trait for a propensity purpose, and because he elicited testimony about Tongkeamah’s violence only for a non-propensity purpose—to support his self-defense theory by showing that he knew about such violence and thus reasonably feared for his life when Tongkeamah allegedly searched for an ax—the rule did not apply. However, the record confirms that defense counsel asserted various reasons for objecting to the government’s proposed testimony at trial, but he did not argue that he never opened the door to defendant’s character evidence under Rule 404(a)(2)(B) because he offered victim character evidence only for a non-propensity purpose. Further, despite the earlier evidentiary ruling admitting testimony about Tongkeamah’s violence for a non-propensity purpose, the district court later accepted the government’s characterization that such testimony had instead been admitted to show Tongkeamah’s propensity for violence, and Redbird never corrected that characterization or otherwise objected for the reason he advances on appeal. Therefore, defense counsel did not object to Ware’s testimony on the specific ground that Redbird advances on appeal, so the ruling is subject to plain error review. But Redbird did not argue that he can satisfy the plain error standard and thus waived his evidentiary challenge.

The convictions were affirmed.