Appellate Case: 23-7062 Document: 010111063325 Date Filed: 06/11/2024 Page: 1 FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT June 11, 2024 _________________________________ Christopher M. Wolpert Clerk of Court UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v. No. 23-7062 (D.C. No. 6:21-CR-00170-BMJ-1) JEFFREY LYN PIERCE, (E.D. Okla.)
Defendant - Appellant. _________________________________
ORDER AND JUDGMENT* _________________________________
Before MORITZ, ROSSMAN, and FEDERICO, Circuit Judges. _________________________________
Defendant Jeffrey Lyn Pierce appeals his conviction for second-degree murder
in Indian country, in violation of 18 U.S.C. §§ 1111(a), 1151, and 1152. Exercising
jurisdiction pursuant to 28 U.S.C. § 1291, we affirm.
I
In early 2018, Mr. Pierce, a non-Indian, married Ronnie Fitzpatrick, an enrolled
member of the Choctaw Nation of Oklahoma (Choctaw Nation). Following their
* After examining the briefs and appellate record, this panel has determined unanimously to honor the parties’ request for a decision on the briefs without oral argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore submitted without oral argument. This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. It may be cited, however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. Appellate Case: 23-7062 Document: 010111063325 Date Filed: 06/11/2024 Page: 2
marriage, the couple lived together on a rural property just outside of Hugo, Oklahoma,
that included two houses. It is undisputed that the property lies within the boundaries
of the Choctaw Nation’s reservation and is considered Indian Country for purposes of
the General Crimes Act. See 18 U.S.C. § 1152.
In early 2020, Ms. Fitzpatrick1 befriended Jackie Mills, a Hugo resident.
Between February and May of 2020, Ms. Fitzpatrick and Ms. Mills saw each other on
a daily basis. According to Ms. Mills, Mr. Pierce and Ms. Fitzpatrick argued frequently
and, at some point in early 2020, Ms. Fitzpatrick moved from the couple’s bigger house
and lived separately from Mr. Pierce in the smaller house located on the same property.
Ms. Fitzpatrick also, in February 2020, moved some furniture and other belongings
from the couple’s bigger house into a storage unit in Hugo that she solely controlled.
On the evening of May 6, 2020, Ms. Fitzpatrick and Ms. Mills ate dinner
together at the bigger house on the Pierces’ property. Ms. Fitzpatrick made a plate of
food for Mr. Pierce and took it from the kitchen into the living room where Mr. Pierce
was sitting. Mr. Pierce threw the plate of food back at Ms. Fitzpatrick as she returned
to the kitchen. Mr. Pierce then, according to Ms. Mills, “pulled a knife on”
Ms. Fitzpatrick. App. vol. I at 218. Ms. Fitzpatrick responded by grabbing a knife and
the couple proceeded to argue with each other with the knives in their hands. Ms. Mills
was able to persuade the couple to put the knives down. The couple, however,
1 Ms. Fitzpatrick took Mr. Pierce’s surname at the time of their marriage. In order to avoid confusion, however, we will refer to her as Ms. Fitzpatrick throughout this decision. 2 Appellate Case: 23-7062 Document: 010111063325 Date Filed: 06/11/2024 Page: 3
continued to argue and Mr. Pierce placed Ms. Fitzpatrick in a chokehold. Ms. Mills
intervened again and Mr. Pierce told Ms. Mills that she “needed to get [Ms. Fitzpatrick]
out of there before he killed her.” Id. at 218. Ms. Mills and Ms. Fitzpatrick left the
bigger house and went to Ms. Mills’s house. As the two women were leaving,
Mr. Pierce threw “a boot or shoes or something out the door at” Ms. Fitzpatrick. Id. at
219.
The two women remained at Ms. Mills’s house until approximately 9 p.m., when
they returned to the bigger house on the Pierces’ property. There, they made some
margaritas and got in the hot tub. At approximately 2:30 a.m. on May 7, 2020,
Ms. Mills left and returned to her own house. Ms. Mills asked Ms. Fitzpatrick to spend
the night at Ms. Mills’s house, but Ms. Fitzpatrick declined to do so.
According to Ms. Mills, she received several phone calls from Ms. Fitzpatrick
later on the morning of May 7, but she missed those calls. Ms. Mills also, at some
point that same morning, received a text message from Ms. Fitzpatrick that stated,
“Call me ASAP.” Id. at 221.
In the early afternoon hours of May 7, a Hugo resident named Leonard Fox
received a phone call from Mr. Pierce. Mr. Fox had known Mr. Pierce for over forty
years and had previously worked for Mr. Pierce at a nightclub in Hugo. According to
Mr. Fox, Mr. Pierce “told [him] to call 911, that Ronnie was bleeding from the neck”
and that Mr. Pierce had “stabbed her.” Id., vol. II at 386. Mr. Fox called 911 and
conveyed the information that Mr. Pierce provided to him.
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Kay Ledet, a paramedic employed by the Choctaw County Ambulance Authority
in Hugo, answered the 911 call placed by Mr. Fox and then drove by ambulance to the
Pierces’ residence. Mr. Pierce was standing in the doorway of the bigger house and,
according to Ms. Ledet, several other people were present at the scene. Mr. Pierce told
Ms. Ledet that Ms. Fitzpatrick had pulled a gun. He then told Ms. Ledet that
Ms. Fitzpatrick also pulled a knife on him and had been threatening him. Ms. Ledet
asked Mr. Pierce if Ms. Fitzpatrick was still threatening him, and Mr. Pierce said “no,
she’s almost dead.” Id., vol. I at 172. Mr. Pierce pointed Ms. Ledet in the direction of
Ms. Fitzpatrick, who was lying on her right side inside the house. Ms. Ledet turned
Ms. Fitzpatrick over and was able to detect a shallow pulse. Ms. Ledet then dragged
Ms. Fitzpatrick onto the front porch area of the house so that she did not disturb what
she believed was a potential crime scene and also to get away from the large area of
blood around Ms. Fitzpatrick’s body. Ms. Ledet actively treated Ms. Fitzpatrick for
sixteen minutes, to no avail.
Dr. Cheryl Niblo, a forensic pathologist employed by the Office of the Chief
Medical Examiner in Tulsa, Oklahoma, performed an autopsy on Ms. Fitzpatrick’s
body. Dr. Niblo determined that Ms. Fitzpatrick sustained approximately sixty-six
sharp-force injuries, the majority of which were incised wounds, on her head, neck,
chest, shoulder, left upper back, arms, and hands. Dr. Niblo concluded that one of
those injuries, a one-inch stab wound on Ms. Fitzpatrick’s neck, hit an external jugular
vein and was lethal because it caused a significant amount of blood loss. Dr. Niblo
concluded that the cause of death was multiple sharp-force injuries and that the manner
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of death was homicide. Lastly, Dr. Niblo noted that Ms. Fitzpatrick tested positive for
methamphetamine and Xanax and opined that the methamphetamine was ingested by
Ms. Fitzpatrick near the time of her death.
II
On April 15, 2021, a criminal complaint was filed against Mr. Pierce in the
United States District Court for the Eastern District of Oklahoma charging him with
murder in Indian Country, in violation of 18 U.S.C. §§ 1111(a), 1151, and 1152.
Shortly thereafter, a federal grand jury indicted Mr. Pierce on the same charge. The
indictment alleged that Mr. Pierce “willfully, deliberately, maliciously, and with
premeditation and malice aforethought, unlawfully kill[ed]” Ms. Fitzpatrick.
Suppl. App. at 1.
The case proceeded to a jury trial in May 2022. The government presented
testimony from eight witnesses and rested its case. Defendant moved for a judgment
of acquittal, but the district court denied that motion. The defense then presented
testimony from fifteen witnesses, including Mr. Pierce himself. The focus of the
defense case was on Mr. Pierce’s theory of self-defense. At the conclusion of all the
evidence, the defense again moved for a judgment of acquittal, but the district court
again denied the motion. The jury found Mr. Pierce not guilty of first-degree murder,
but guilty of second-degree murder.
The district court sentenced Mr. Pierce to 327 months’ imprisonment, to be
followed by a three-year term of supervised release.
Mr. Pierce now appeals.
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III
Mr. Pierce raises four issues on appeal. In his first two issues, he challenges
evidentiary rulings made by the district court during trial. In his third issue, he argues
that the district court erred by failing to sua sponte instruct the jury on the theory of
imperfect self-defense and the lesser-included offense of involuntary manslaughter. In
his final issue on appeal, Mr. Pierce argues that the district court erred in denying his
motion for judgment of acquittal. For the reasons outlined below, we conclude that all
of these issues lack merit.
A
Shortly after Ms. Fitzpatrick’s death, Chad Dansby, a special agent with the
Oklahoma State Bureau of Investigation (OSBI), arrived at Mr. Pierce’s residence and
interviewed him. At trial, the government presented Agent Dansby as a witness and
asked him, in relevant part, “what, if anything, did the defendant say about who stabbed
and killed [Ms. Fitzpatrick]?” App., vol. I at 185. Agent Dansby replied: “He told me
that he did. And that he had—wasn’t sure how many times, but he thought it was about
maybe around four.” Id.
On cross-examination, defense counsel asked Agent Dansby a series of
follow-up questions about his interview with Mr. Pierce. In particular, defense counsel
asked Agent Dansby if Mr. Pierce told him “about taking out a protective order against”
Ms. Fitzpatrick. Id. at 188. Government counsel objected to the question, noting
Mr. Pierce filed “an application for a protective order,” but that the application
“actually was never granted by the Court” and “was dismissed . . . because both parties
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didn’t show up.” Id. at 189. Government counsel also argued that the application for
protective order should not be admitted because it “contain[ed] a bunch of the
defendant’s allegations that ha[d] not been validated by the Court.” Id. During the
ensuing colloquy, defense counsel stated that “Mr. Pierce [wa]s likely to testify” in his
own defense, “in which case” his allegations in the application for a protective order
“w[ould] then become relevant.” Id. at 190. Defense counsel then stated, “I would
like to make sure that [Agent Dansby] was told about it. If not, we can call him back.
It was going to be two questions just to set the stage.” Id. The district court responded,
“Well, I think you ought to call [Agent Dansby] back,” and in turn sustained the
objection to the question. Id.
On appeal, Mr. Pierce argues that the district court violated “the completeness
doctrine” by limiting defense counsel’s cross-examination of Agent Dansby regarding
his interview with Mr. Pierce. Aplt. Br. at 13. Mr. Pierce notes that “[t]his is a self
defense case,” and he argues that “[t]o allow the government to introduce evidence that
[he] stabbed the victim and not allow him to explain why he stabbed her is distortion
at the highest level.” Id. at 17.
We review the district court’s evidentiary rulings for abuse of discretion. United
States v. Hay, 95 F.4th 1304, 1318 (10th Cir. 2024). That means “we do not reverse
absent a distinct showing that the district court ruled based on a clearly erroneous
finding of fact or conclusion of law or manifested a clear error of judgment.” United
States v. Williston, 862 F.3d 1023, 1038 (10th Cir. 2017).
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“The rule of completeness . . . began as a common-law rule and is now partially
codified in [Federal Rule of Evidence] 106 . . . .” Id. At the time of the trial in this
case, Rule 106 provided that “[i]f a party introduces all or part of a writing or recorded
statement, an adverse party may require the introduction, at that time of any other
part—or any other writing or recorded statement—that in fairness ought to be
considered at the same time.”2 Fed. R. Evid. 106 (2022). We consider four factors in
determining whether proffered evidence should be admitted under the rule of
completeness. Williston, 862 F.3d at 1038. Those factors include whether the
proffered evidence: “(1) explains the admitted evidence, (2) puts the admitted evidence
in context, (3) does not itself mislead the jury, and (4) ensures that the jury can fairly
and impartially understand the evidence.” Id. at 1038–39. Under the rule of
completeness, otherwise inadmissible statements may be admitted to provide necessary
context for other statements already properly admitted. United States v. Lopez-Medina,
596 F.3d 716, 735–36 (10th Cir. 2010).
We conclude that the district court did not abuse its discretion in limiting
defense counsel’s cross-examination of Agent Dansby. Although Agent Dansby
testified that Mr. Pierce told him he stabbed Ms. Fitzpatrick, that fact was not in dispute
and thus Agent Dansby’s testimony did not mislead the jury. Moreover, the testimony
that defense counsel sought to elicit from Agent Dansby regarding Mr. Pierce seeking
2 Rule 106 was amended in 2023 to expressly include oral statements. 8 Appellate Case: 23-7062 Document: 010111063325 Date Filed: 06/11/2024 Page: 9
a protective order against Ms. Fitzpatrick was unnecessary to place Agent Dansby’s
testimony on direct examination into context for the jury.
Even assuming, for purposes of argument, that the district court abused its
discretion in limiting defense counsel’s cross-examination of Agent Dansby regarding
his interview with Mr. Pierce, we conclude the error was harmless. See generally
United States v. Walker, 85 F.4th 973, 982 (10th Cir. 2023) (noting that if a party
objects to a district court’s evidentiary ruling based only on the Federal Rules of
Evidence, we review for non-constitutional harmless error). That is because later in
the trial the defense recalled Agent Dansby as a witness and questioned him about what
else Mr. Pierce told him during his investigative interview. Agent Dansby testified in
response that Mr. Pierce stated that he and Ms. Fitzpatrick argued on the morning of
her death and that she “went and got a gun out of the car . . . and . . . waved it around
and pointed it at him.” App., vol. V at 1003. Agent Dansby further testified that Mr.
Pierce stated that shortly thereafter, Ms. Fitzpatrick initiated a deadly confrontation
with him by grabbing a knife from the kitchen and stabbing at his “wrist or arm or
something.” Id. at 1007. According to Agent Dansby, Mr. Pierce stated that he and
Ms. Fitzpatrick then engaged in a lengthy struggle with each other, during which
“[t]hey fell to the floor.” Id.
The defense also presented a variety of testimony regarding Mr. Pierce’s attempt
to obtain a protective order against Ms. Fitzpatrick. To begin with, Mr. Pierce testified
at length about his volatile relationship with Ms. Fitzpatrick, including multiple
instances in which she allegedly physically attacked him or threatened him with
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violence, and about how he became frightened of Ms. Fitzpatrick and briefly moved
out on two occasions due to his fear of her. With the district court’s permission,
defense counsel asked Mr. Pierce if he “sw[ore] out a protective order against”
Ms. Fitzpatrick. Id., vol. III at 493. Mr. Pierce stated that he did, but that he failed to
follow up on it and go to court and, as a result, a protective order was never issued
against her. During the redirect examination of Mr. Pierce, the district court permitted
defense counsel to question Mr. Pierce about the application for protective order that
he filed against Ms. Fitzpatrick. Mr. Pierce testified that the application was dated
February 29, 2020, and he described what he alleged in the application. Specifically,
Mr. Pierce testified that he stated in the application that Ms. Fitzpatrick twice hit him
across his face, stabbed at him eleven times while he was lying in bed and caused him
to sustain a small cut, threatened him with a gun on one occasion, and, approximately
ten days prior to the filing of the application, pulled a knife on him and cut his thumb.
Dr. Victoria Pardue, Mr. Pierce’s family physician, testified that during an office visit
in early April 2020, Mr. Pierce told her that Ms. Fitzpatrick had been physically
abusive to him and that he had sought a protective order against her. Lastly, Terry
Park, the Sheriff of Choctaw County, Oklahoma, testified that he had served a
protective order application on Ms. Fitzpatrick.
In light of all this evidence, we conclude the jury was in no way misled by the
admission of Agent Dansby’s testimony during the government’s case-in-chief nor the
limitations on cross-examination during his first round of testimony. Rather, the jury,
at the time of its deliberation, was fully aware of what Mr. Pierce told Agent Dansby
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during his interview, and, more generally, of his claim that he acted in self-defense
when he killed Ms. Fitzpatrick.
B
In his second issue on appeal, Mr. Pierce argues that the district court erred in
refusing to allow him to testify that he “suffers from the beginning of dementia.” Aplt.
Br. at 13. Alternatively, Mr. Pierce argues that the district court erred by failing to
sua sponte order him to undergo a competency examination.
To properly address these arguments, we begin by reviewing in some detail the
relevant portions of the trial proceedings. Mr. Pierce testified in his own defense. Near
the outset of his testimony, defense counsel stated to Mr. Pierce: “I’m going to ask you
some questions about your health conditions now, in 2022, and I’m going to talk to
you about your health conditions at the time that [Ms. Fitzpatrick] died, okay?” App.,
vol. III at 416. When defense counsel began to question Mr. Pierce about his current
health conditions, the government objected and argued that any discussion of his
current health conditions was “just a way to garner support” from the jury. Id. at 417.
Defense counsel responded: “Well, the jury is going to be deciding his credibility and
I think the fact that he’s got some issues with respect to not being able to sleep and
some beginnings of dementia, which he’s noticed and family members have noticed,
is very relevant to their consideration of his testimony and the cross-examination.” Id.
Defense counsel further stated: “He’s competent and that’s not an issue, but whether
or not he has health issues which are going to affect his testimony I think is perfectly
relevant for the jury to consider.” Id. The district court then asked defense counsel:
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“So the health issues are going to affect his testimony, does not that speak then to
competency? Does that not trigger a competency inquiry?” Id. at 417–18. Defense
counsel responded, “No. Competency is basically a very, very low standard that says
that he can’t understand or appreciate the nature of the case and that he cannot
communicate with his lawyers. He can do both of those.” Id. at 418. The district court
ruled that it would “not . . . allow the discussion as to present challenges,” but would
allow “those that were existing, then existing at the time of the crime.” Id. Consistent
with the district court’s ruling, defense counsel questioned Mr. Pierce about his “health
issues in May of 2020.” Id. at 419. Mr. Pierce testified that he suffered from a number
of physical ailments, including diabetes, recovery from gallbladder surgeries, a liver
infection, arthritis, numbness in his feet, overall weakness in his body, balance issues,
and cataracts.
Later during Mr. Pierce’s direct examination, the district court and the parties
had a sidebar to discuss, in relevant part, the government’s objection that defense
counsel was “leading the witness.” Id. at 497. In the course of discussing that issue,
defense counsel stated:
Your Honor, I will just say for the record that the reason I wanted to go into what’s been going on with [Mr. Pierce] is the beginning stages of dementia. Our expert said he is competent, but he is in the beginning stages of dementia and I think we clearly see it. But I don’t think I need to go into it because I think the jury sees it, too. Everybody’s got a grandpa.
Id. at 498–99.
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During the remainder of his testimony, Mr. Pierce twice stated, without
prompting from defense counsel, that he was having memory issues. In one instance,
Mr. Pierce, in responding to the question of why he returned to live with
Ms. Fitzpatrick after she had allegedly physically abused him, stated: “She told me she
would always take care of me when I got old, and I was getting there, working on it
pretty steady. My mind is—I kind of got dementia, a little bit of dementia, because I
can’t remember where I’m going sometimes—.” Id. at 507. The prosecution objected
to this testimony. The district court sustained the objection and instructed the jury to
“disregard that last statement.” Id. Later, during redirect, Mr. Pierce stated that he did
not remember if Ms. Fitzpatrick said anything to him as they fell to the floor prior to
her death. When asked by defense counsel “Why do you think you wouldn’t
remember?,” Mr. Pierce responded: “I can’t remember hardly anything anymore. I’m
just getting old.” Id., vol. IV at 695. Mr. Pierce’s statement was not stricken from the
record.
Mr. Pierce now argues on appeal that “testimony regarding the beginnings of
[his] dementia [was] relevant and should have been admitted.” Aplt. Br. at 21.
Mr. Pierce argues in support that his “troubles testifying within the limitations as set
out in a courtroom . . . were because of the onset of dementia.” Id. at 22. Mr. Pierce
further argues that “[h]is credibility/believability [wa]s of paramount importance” and
“[f]or the jury to know that his rambling testimony and some misrecollections [we]re
due to a health condition [wa]s vitally important in assessing his credibility.” Id. “To
exclude this evidence of dementia,” Mr. Pierce argues, “is unfair prejudice.” Id. at 23.
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As noted, we review the district court’s evidentiary rulings for abuse of
discretion. Hay, 95 F.4th at 1318. “Relevant evidence is [generally] admissible,”
whereas “[i]rrelevant evidence is not admissible.” Fed. R. Evid. 402. Evidence is
considered relevant if “(a) it has any tendency to make a fact more or less probable
than it would be without the evidence; and (b) the fact is of consequence in determining
the action.” Fed. R. Evid. 401. Even if evidence is relevant, it may be excluded “if its
probative value is substantially outweighed by a danger of one or more of the
following: unfair prejudice, confusing the issues, misleading the jury, undue delay,
wasting time, or needlessly presenting cumulative evidence.” Fed. R. Evid. 403.
We assume, as does the government, that Mr. Pierce’s alleged memory issues
were relevant under Rule 401 for purposes of the jury evaluating the reliability of his
testimony or his credibility. We therefore focus on whether the district court abused
its discretion in excluding the evidence under Rule 403.3
3 At trial, the government’s objection to the dementia evidence was to relevance and did not mention Rule 403. Likewise, the district court did not expressly refer to Rule 403 in excluding Mr. Pierce’s testimony regarding his alleged dementia. But the district court did state on the record that Mr. Pierce’s testimony would “invite . . . sympathy, which we’re not going to allow,” App. vol. III at 417, and would also “draw unnecessary attention” to this evidence by the jury. Id. at 420. Although we can conduct a de novo balancing when a district court does not make explicit Rule 403 findings, United States v. McVeigh, 153 F.3d 1166, 1189 (10th Cir. 1998), we review for abuse of discretion here because we conclude the district court “must have implicitly made a Rule 403” ruling when it considered and sustained the government’s objections to that testimony. United States v. Lazcano-Villalobos, 175 F.3d 838, 847 (10th Cir. 1999).
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Although Mr. Pierce’s defense counsel made reference during trial to a defense
expert opining that Mr. Pierce was “in the beginning stages of dementia,” the defense
did not present that expert as a witness at trial. App., vol. III at 499. “[A] lay witness,”
such as Mr. Pierce, “cannot testify to ‘scientific, technical, or other specialized
knowledge.’” United States v. Torres-Correa, 23 F.4th 129, 136 (10th Cir. 2022)
(quoting Fed. R. Evid. 701(c)). Instead, “an opinion based on scientific . . .
knowledge,” including testimony about a witness’s mental health, “may only be given
by ‘[a] witness who is qualified as an expert by knowledge, skill, experience, training,
or education.’” Id. (quoting Fed. R. Evid. 702). Without the testimony of a qualified
witness discussing how Mr. Pierce’s early dementia could affect his ability to recall
events, the jury would have been left to speculate about the relevance and probative
value of Mr. Pierce’s own statements regarding his dementia.4 We therefore conclude
that, under Rule 403, the probative value of Mr. Pierce’s proffered testimony regarding
his alleged dementia diagnosis would have been substantially outweighed by the
danger of confusing the issues or misleading the jury. As a result, we conclude the
district court did not abuse its discretion in prohibiting Mr. Pierce from testifying that
he was suffering from the beginning stages of dementia. Id.; see also United States v.
Jones, 213 F.3d 1253, 1261 (10th Cir. 2000) (concluding district court did not abuse
its discretion in refusing to allow cross-examination of key prosecution witness
4 Indeed, Mr. Pierce does not clarify in his appellate brief how his testimony regarding his alleged dementia diagnosis could have affected his ability to recall events relevant to the issues at trial. 15 Appellate Case: 23-7062 Document: 010111063325 Date Filed: 06/11/2024 Page: 16
regarding his history of mental illness because no expert testimony was presented
establishing how the witness’s history of mental illness “could significantly affect
perception or recollection”).
That leaves Mr. Pierce’s alternative argument that the district court erred by
failing to sua sponte order a competency examination of him. The government argues
in response that Mr. Pierce has waived this argument by failing to adequately brief it.5
In his brief, Mr. Pierce failed to develop this cursory argument and did not include any
citations to legal authorities to support his position. As such, we agree with the
government that he waived this argument on appeal. See Fed. R. App. P. 28(a)(8)(A);
Sawyers v. Norton, 962 F.3d 1270, 1286 (10th Cir. 2020) (“[A]rguments that are
inadequately presented in an opening brief” or “presented only in a perfunctory
manner” are “abandoned or waived” (brackets and internal quotation marks omitted));
United States v. Cooper, 654 F.3d 1104, 1128 (10th Cir. 2011) (“It is well-settled that
arguments inadequately briefed in the opening brief are waived.” (alterations and
quotations omitted)).
C
In his third issue, Mr. Pierce argues that the district court erred by failing to sua
sponte instruct the jury on the theory of imperfect self-defense and the lesser-included
offense of involuntary manslaughter. Because Mr. Pierce did not request either of
these instructions during the district court proceedings, our review is, at most, only for
5 Mr. Pierce makes no mention of the issue in his appellate reply brief. 16 Appellate Case: 23-7062 Document: 010111063325 Date Filed: 06/11/2024 Page: 17
plain error.6 Sago, 74 F.4th at 1157. To prevail under this standard, Mr. Pierce “must
demonstrate (1) error, (2) that is plain, which (3) affects substantial rights, and which
(4) seriously affects the fairness, integrity, or public reputation of judicial
proceedings.” Id. at 1157–58 (internal quotation marks omitted)).
It is well established that “a defendant is entitled to an instruction as to any
recognized defense for which there exists evidence sufficient for a reasonable jury to
find in his favor.” Mathews v. United States, 485 U.S. 58, 63 (1988). Here, Mr. Pierce
asserted, and the district court instructed the jury on, a theory of self-defense. “A
person may resort to self-defense if he reasonably believes that he is in imminent
danger of death or great bodily harm, thus necessitating an in-kind response.” United
States v. Britt, 79 F.4th 1280, 1286 (10th Cir. 2023) (quoting United States v. Toledo,
739 F.3d 562, 567 (10th Cir. 2014)). Self-defense negates the malice element of first-
degree murder by showing the defendant had a justification for killing the victim.
United States v. Kepler, 74 F.4th 1292, 1313 (10th Cir. 2023).
“Closely related to self-defense, which we sometimes refer to as perfect
self-defense, is the defense of imperfect self-defense.” Britt, 79 F.4th at 1286. Both
of these defenses require the defendant to “possess the subjective belief that deadly
force was necessary to prevent death or great bodily harm.” Id. (quoting United States
v. Craine, 995 F.3d 1139, 1156 (10th Cir. 2021)). The key distinction between the two
6 In United States v. Sago, 74 F.4th 1152, 1162 (10th Cir. 2023), we suggested that “the decision to conduct plain-error review” in these circumstances could “be treated as dictum.” Out of an abundance of caution, however, we shall apply plain error review in this case. 17 Appellate Case: 23-7062 Document: 010111063325 Date Filed: 06/11/2024 Page: 18
defenses is “the reasonableness of the defendant’s [subjective] belief that deadly force
was necessary to prevent death or great bodily harm.” Id. (quoting Toledo, 739 F.3d
at 569). If the defendant’s subjective belief was objectively reasonable, “he has a
complete defense and is entitled to a self-defense acquittal.” Id. (internal quotation
marks omitted). But if the defendant’s subjective belief was not objectively
reasonable—in other words, if the factfinder determines the defendant was criminally
negligent in his subjective belief—“he is not entitled to a complete acquittal, but rather
is guilty of involuntary manslaughter.” Id. at 1287 (internal quotation marks omitted).
Importantly, a defendant cannot proceed on a theory of imperfect self-defense
without the jury being instructed on the lesser-included offense of involuntary
manslaughter. That is because, as we noted in Sago, “it would be intolerable to instruct
a jury that a mitigation affirmative defense (such as imperfect self-defense) would
establish innocence of the charged offense while failing to instruct the jury that the
mitigating circumstances only reduce culpability to that of a lesser-included offense.”
74 F.4th at 1160. Given our repeated holding “that a defendant is not entitled to a
lesser-included-offense instruction unless the instruction has been requested at trial,”
a defendant seeking to proceed on a theory of imperfect self-defense must request an
involuntary manslaughter instruction. Id. at 1161 (citing cases).
Here, it is undisputed that Mr. Pierce did not ask the district court to instruct the
jury on the theory of imperfect self-defense or the lesser-included offense of
involuntary manslaughter. The district court was therefore under no obligation to
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sua sponte provide those instructions to the jury. As a result, Mr. Pierce’s claim of
error fails at the first prong of the plain error test.
D
In his final issue, Mr. Pierce argues that the district court erred in denying his
motion for judgment of acquittal. We review de novo the sufficiency of the evidence
to support a conviction or the denial of a defendant’s motion for judgment of acquittal.
United States v. Walker, 74 F.4th 1163, 1190 (10th Cir. 2023). “This review is highly
deferential, meaning we consider the evidence and make reasonable inferences in the
light most favorable to the Government.” Id. (internal quotation marks omitted). We
will reverse a conviction only if no rational trier of fact could have found the essential
elements of the crime of conviction beyond a reasonable doubt. Id.
The jury in this case found Mr. Pierce guilty of the lesser-included offense of
second-degree murder. To find Mr. Pierce guilty of that crime, the jury had to find
beyond a reasonable doubt that (1) Mr. Pierce caused the death of Ms. Fitzpatrick,
(2) Mr. Pierce killed Ms. Fitzpatrick with malice aforethought (meaning either that he
killed her deliberately and intentionally, or acted with callous and wanton disregard
for human life), and (3) the killing took place in Indian Country. See Sago, 74 F.4th
at 1156; see 18 U.S.C. §§ 1111(a), 1152.
Mr. Pierce disputes only the second element, i.e., whether the evidence was
sufficient to allow the jury to find beyond a reasonable doubt that he killed
Ms. Fitzpatrick with malice aforethought. In particular, he argues that the government
failed to prove beyond a reasonable doubt that he did not act in self-defense. As we
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have noted, self-defense negates the element of malice by showing the defendant had
a justification for killing the victim. Kepler, 74 F.4th at 1313.
We reject Mr. Pierce’s argument. Mr. Pierce admitted to killing Ms. Fitzpatrick
by stabbing her with a knife. Although Mr. Pierce told Agent Dansby immediately
after the killing that he recalled stabbing Ms. Fitzpatrick four times, the medical
examiner determined that Ms. Fitzpatrick sustained sixty-six separate sharp-force
injuries all over her upper body, including slash wounds to her face, stab wounds on
both sides of her neck and under her chin, and the fatal stab wound to her jugular vein.
The medical examiner also determined that Ms. Fitzpatrick sustained multiple blunt
force injuries to her head, chin, neck, and shoulder, most or all of which were
inconsistent with Mr. Pierce’s description of the events leading to her death. Further,
although Mr. Pierce presented evidence intended to show that his age and various
physical ailments had reduced his physical capabilities, the jury could have reasonably
found that any such decrease in Mr. Pierce’s physical capabilities was offset by the
substantial size advantage he had over Ms. Fitzpatrick. Mr. Pierce is 6’ 2” tall and
weighs 210 pounds, whereas Ms. Fitzpatrick was 5’ 1” tall and weighed 115 pounds.
Notably, the OSBI crime scene investigator testified that there appeared to be more
blood stains on the inside inner legs of Mr. Pierce’s jeans than on the outsides of the
jeans, suggesting that Mr. Pierce may have straddled Ms. Fitzpatrick’s body while he
inflicted some or all of the sharp-force wounds. In sum, we conclude that the jury
could have reasonably found that the injuries Mr. Pierce inflicted on Ms. Fitzpatrick
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were neither proportional to the threat he allegedly faced from her nor necessary for
his self-defense.
IV
We AFFIRM Mr. Pierce’s conviction for second-degree murder.
Entered for the Court
Richard E.N. Federico Circuit Judge