United States v. Richard Donald Lonedog

929 F.2d 568, 1991 U.S. App. LEXIS 5168, 1991 WL 42643
CourtCourt of Appeals for the Tenth Circuit
DecidedApril 2, 1991
Docket90-8040
StatusPublished
Cited by73 cases

This text of 929 F.2d 568 (United States v. Richard Donald Lonedog) is published on Counsel Stack Legal Research, covering Court of Appeals for the Tenth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Richard Donald Lonedog, 929 F.2d 568, 1991 U.S. App. LEXIS 5168, 1991 WL 42643 (10th Cir. 1991).

Opinion

STEPHEN H. ANDERSON, Circuit Judge.

Richard Donald Lonedog was convicted of committing sexual abuse in Indian Country, in violation of 18 U.S.C. §§ 1153 and 2242(1). He appeals, contending that the district court erroneously limited his cross examination of the alleged victim, and that prosecutorial misconduct denied him a fair trial. We affirm.

The relevant facts are in dispute. Rena-ta White alleges, and Lonedog denies, that Lonedog raped her on September 20, 1988. She and Lonedog agree that, while Lone-dog was giving her a ride, they stopped at an abandoned house known as “The Farm.” According to White, Lonedog stopped the car and forced her to go inside with him, where he raped her. According to Lone-dog, White consented to engaging in intercourse there. Their respective stories differ dramatically, and the trial below centered on the credibility of White, Lonedog, and the witnesses called to corroborate their respective accounts.

I.

Lonedog first contends that the district court improperly limited his cross-examina *570 tion of White concerning her physical condition before and after the rape. Lonedog does not cite to, nor do we find, any such limitation in the record. To the contrary, the record reveals considerable cross-examination of White concerning her physical condition both before and after the rape. R.Vol. VII at 231-68.

Lonedog does cite to the district court’s exclusion of testimony offered to impeach White’s credibility. R.Vol. VII at 430-34. He apparently alleges that exclusion of the testimony denied him his right to confrontation. In support of this proposition he cites United States v. Atwell, 766 F.2d 416 (10th Cir.), cert. denied, 474 U.S. 921, 106 S.Ct. 251, 88 L.Ed.2d 259 (1985) and United States v. Valentine, 706 F.2d 282 (10th Cir.1983). These cases stand for the proposition that the defendant’s right to confrontation may be violated if the trial court precludes an entire relevant area of cross-examination. However, as we have already stated, the excluded evidence was another witness’s testimony, not the cross-examination of White. Moreover, the record reveals that the district court excluded the proffered testimony because it was irrelevant.

“In reviewing the evidentiary rulings of a trial court, we may not reverse in the absence of an abuse of discretion.” United States v. Alexander, 849 F.2d 1293, 1301 (10th Cir.1988) (citing United States v. Rodriguez-Pando, 841 F.2d 1014, 1018 (10th Cir.1988)). Lonedog’s offer of proof indicated that the testimony would show White was beaten by her boyfriend 24 hours after the alleged rape. The government argued such evidence was irrelevant to whether Lonedog raped White. In response, Lonedog suggested, and now alleges on appeal, that the jury could infer from the fact of the beating that White’s boyfriend had beaten her because she had engaged in consensual intercourse with Lone-dog. He further suggested that the beating established motivation for White to untruthfully characterize the incident as a rape in order to avoid further physical abuse from her boyfriend.

We disagree. Evidence that White’s boyfriend beat her is in no way relevant to the issue of whether she consented to intercourse with Lonedog. As for the alleged motive to lie, by the time the beating supposedly occurred, White had already told her friends, law enforcement officers, and medical personnel that she had been raped. We cannot say that the trial court abused its discretion in refusing to admit this irrelevant and potentially prejudicial testimony into evidence.

II.

The remainder of Lonedog’s arguments on appeal are essentially allegations of prosecutorial misconduct. He asserts that certain questions posed by the prosecutor in her examination of various witnesses were improper and constitute reversible error. In order to preserve alleged error for appeal, however, a party must make a timely and proper objection. United States v. Taylor, 800 F.2d 1012, 1017 (10th Cir.1986), cert. denied, 484 U.S. 838, 108 S.Ct. 123, 98 L.Ed.2d 81 (1987). If the party fails to object, we will only reverse for plain error. Id. “Plain error is ‘fundamental error, something so basic, so prejudicial, so lacking in its elements that justice cannot have been done.’ ” United States v. Henning, 906 F.2d 1392, 1397 (10th Cir.1990) (quoting United States v. Coppola, 486 F.2d 882, 884 (10th Cir.1973), cert. denied, 415 U.S. 948, 94 S.Ct. 1469, 39 L.Ed.2d 563 (1974)) (emphasis in original), cert. denied, — U.S. —, 111 S.Ct. 789, 112 L.Ed.2d 852 (1991). Thus, we first consider the questions to which Lonedog failed to object, and review them for plain error.

Lonedog contends that he was denied a fair trial and due process of law when the prosecutor, on cross-examination, asked whether he was incarcerated. R.Vol. VIII at 556. For support, Lonedog cites Estelle v. Williams, 425 U.S. 501, 96 S.Ct. 1691, 48 L.Ed.2d 126, reh’g denied, 426 U.S. 954, 96 S.Ct. 3182, 49 L.Ed.2d 1194 (1976), in which the Supreme Court held that a defendant may not be compelled to stand trial in his prison clothing. Lone- *571 dog’s situation is very different. First, the Estelle Court’s holding was based on the “continuing [prejudicial] influence throughout the trial,” id. at 505, 96 S.Ct. at 1693, that a defendant’s prison clothing could have on the jury. The prosecutor’s question in this case was an isolated, not a “continuing,” occurrence. Second, the prosecutor posed the objectionable question only moments before properly eliciting from Lonedog the fact that he had been convicted of a felony several years earlier. Any prejudice to Lonedog was limited by the jury learning the basis for his incarceration. Third, even if we apply Estelle’s principle to the prosecutor’s question, the Estelle Court held that any claim of constitutional error is waived by the defendant’s failure to object. Id. at 512-13, 96 S.Ct. at 1696-97. Lonedog did not object to the question regarding his incarceration. We hold that it did not constitute plain error.

Lonedog also challenges the questions posed in the following exchange between the prosecutor and defense witness Lucy Moss, Lonedog’s ex-wife, regarding Moss’s relationship with Lonedog:

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Bluebook (online)
929 F.2d 568, 1991 U.S. App. LEXIS 5168, 1991 WL 42643, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-richard-donald-lonedog-ca10-1991.