United States v. Lechner , 341 F. App'x 443 ( 2009 )

FILED
United States Court of Appeals
Tenth Circuit
August 14, 2009
UNITED STATES COURT OF APPEALS
Elisabeth A. Shumaker
Clerk of Court
TENTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff - Appellee, No. 08-1385
v. (D. Colorado)
MCKENZIE WRIGHT LECHNER, (D.C. No. 1:06-CR-00343-WDM-1)
also known as Gayla Cloud Lechner,
Defendant - Appellant.
ORDER AND JUDGMENT *
Before LUCERO, MURPHY, and McCONNELL, Circuit Judges.
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist in the determination
of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is
therefore ordered 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This order and judgment is not binding precedent except under the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.
I. Introduction
Defendant-Appellant McKenzie Wright Lechner appeals her conviction for
assault with a dangerous weapon in violation of 18 U.S.C. §§ 113(a)(3) and 1153.
On appeal she raises two issues: (1) the district court abused its discretion by
refusing to accept her guilty plea, and (2) the district court interfered with her
constitutional right to testify when it advised her of the effect of her failure to
testify. Exercising jurisdiction pursuant to 28 U.S.C. § 1291, we affirm the
district court on both issues.
II. Background
Lechner is an enrolled member of the Southern Ute Tribe and lives on the
Southern Ute reservation. In April of 2006, Sequoia King and Selwyn King,
Lechner’s granddaughter and grandson, respectively, traveled from their home in
Denver to the Southern Ute reservation near Durango, Colorado. They were
accompanied by Misty Cockerham, a Denver neighbor. The purpose of the trip
was for Sequoia, who had recently turned sixteen years old, to pick up a car from
Lechner. Cockerham was along for the trip so she could accompany Sequoia on
the drive back to Denver.
The trio had planned to stay with Lechner’s son, Rendell, when they
arrived. They decided the arrangements were unsuitable and so decided to stay at
the hotel in the Sky Ute Casino. At the hotel Sequoia became upset because
Cockerham and Selwyn took a room together and she could hear them having sex.
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She called Lechner, who picked her up from the hotel and put her up for the
night. Although Selwyn and Cockerham knew Lechner had picked up Sequoia,
they were unable to find Sequoia the next day. They spent the day in Durango
together, where they spent some of the money Selwyn’s mother had given him for
the trip.
That night, Selwyn and Cockerham went to Lechner’s house. At the house
with Lechner were her husband Gale, her son Rendell, and Sequoia. Lechner
began arguing with Selwyn and slapped him. Cockerham put her hands up and
attempted to get between them. Lechner’s husband, Gail, grabbed Selwyn and
held him against the wall. Lechner grabbed Cockerham by the hair, pulled her
head down, and struck her head with her knee. 1 While Lechner held Cockerham
by the hair, Cockerham tried to punch Lechner. Lechner proceeded to strike
Cockerham repeatedly, empty her pockets, and yell at her. Cockerham fell to the
ground and stopped trying to fight back, but the beating continued. Lechner
struck Cockerham in the head and the body. Lechner delivered some of the blows
with her hard-soled shoe, and also kicked Cockerham in the face. Cockerham was
left bleeding on the floor of the house for several hours before being taken back
to the casino. She was eventually hospitalized and treated for a broken nose and
two broken vertebrae.
1
Sequoia testified that Lechner had first tried to walk away from the
confrontation but was punched in the back by Cockerham.
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Lechner was charged with two criminal counts: (1) knowing assault with a
deadly weapon with intent to do bodily harm in violation of 18 U.S.C.
§§ 113(a)(3) and 1153, and (2) knowing assault resulting in serious bodily injury
in violation of 18 U.S.C. §§ 113(a)(6) and 1153. Lechner signed a plea
agreement whereby she agreed to plead guilty to Count II and the government
agreed to dismiss Count I, not oppose a sentence of probation, and recommend a
sentence at the bottom of the advisory guideline range. Lechner appeared before
the district court to enter her plea of guilty. At that time, the district court
questioned Lechner regarding her decision. The following exchange occurred:
The Court: Do you understand that you are being charged with
assaulting someone named Misty Cockerham?
The Defendant: Yes.
The Court: And that as a result, she suffered serious bodily injury?
The Defendant: I guess.
The Court: You don’t know?
The Defendant: Yes.
The Court: Yes, you don’t know, or yes, you acknowledge that she
received serious bodily injury?
The Defendant: I admit that I broke her nose, yes.
The Court: And it also charges you with having knowingly assaulted
her. Do you understand that; that you knew what you were
doing?
The Defendant: Well, I guess I should say yes.
The Court: No, no. I want the truth. You are sworn to tell the truth.
The Defendant: I didn’t know at the time that I hit her.
The Court: This isn’t traffic court.
The Defendant: I know, Your Honor.
The Court: You are not going to be able to plead to defective muffler
or something. You are charged with a serious crime.
The Defendant: I know that, Your Honor. I understand that.
The Court: You understand you are charged with knowing what you
were doing; that you intentionally assaulted someone?
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The Defendant: I did not intentionally insult [][2] her, no.
The Court: Then I don’t think that I will accept your plea. We’ll be
in recess.
After the district court rejected her plea, Lechner went to trial. She waived
a jury trial. At trial, Lechner indicated she wanted to testify. Her counsel
advised the court, “I think now is a good time for the Court to advise Ms. Lechner
with respect to her right to testify.” The district court proceeded to advise
Lechner as follows:
The Court: Ms. Lechner, your counsel indicates that you desire to
testify. And I wanted to be sure you were aware that you are
given the absolute right not to be a witness by our Constitution
and you have that absolute privilege. And if you chose not to
testify, I won’t make any inference from that whatsoever. Do
you understand that?
The Defendant: Yes.
The Court: Do you understand that the issue before me to be decided
is not whether you are innocent. The question is whether the
government has proved you guilty beyond a reasonable doubt.
So I am not deciding whether you did anything right or wrong
as what may or may not be your sense of right or wrong. I am
only going to be deciding what the government—whether or
not the government has proved you guilty beyond a reasonable
doubt as to each and every element of the charges. So your
failure to testify will not have any impact on my decision
making whatsoever. Do you understand that?
The Defendant: Yes.
The Court: But if you do choose to testify and your attorney limits
the types of questions that she asks, that doesn’t mean that I
won’t allow the government to ask questions beyond the scope
of what your attorney asked. Do you understand that?
2
The transcript contains the word “(sic)” at this point, most likely
indicating the court reporter heard Lechner say “insult” but believed she meant to
say “assault.” We omit the notation because one issue on appeal involves
whether the district court correctly understood Lechner’s testimony.
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The Defendant: Yes.
The Court: In other words, the government’s attorney won’t
necessarily be limited to the subject matter of what your
attorney asks. As long as what the government asks is
relevant, if I believe it’s relevant, I may require you to answer
the question. Do you understand that?
The Defendant: Yes.
The Court: And do you understand that if you refuse to answer a
question after I require you to do that, I may then consider
your refusal or I may disregard all of your testimony. Do you
understand that?
The Defendant: Yes.
The Court: Have you consulted with [counsel] whether or not you
should testify? Don’t tell me what she has advised you.
The Defendant: No, not really Your Honor.
The Court: You have not talked to her about it?
The Defendant: No, I have not talked to her. It was in the air.
The Court: All right. Well, then I am going to recess and I am going
to ask you to discuss it fully with [counsel] before I allow you
to testify.
After the recess, Lechner informed the court she no longer wished to testify.
After the close of evidence, the court returned a verdict of guilty on the
count of assault with a deadly weapon, and not guilty on the count of assault
resulting in serious bodily injury. Lechner was sentenced to 60 months’
imprisonment, and now appeals.
III. Discussion
A. Refusal to Accept Plea
Lechner first contends the district court erred in refusing to accept her plea.
She argues the district court refused her plea after she stated she did not
intentionally insult Cockerham. Because an intent to insult the victim is not an
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element of knowing assault, Lechner argues the district court had no basis to
reject her plea.
When the government and a defendant reach an agreement whereby the
government dismisses one charge in exchange for a plea of guilty to another
charge, the district court may accept or reject the agreement. Fed. R. Crim. P.
11(c)(3)(A). Before accepting a plea of guilty, the district court must ensure the
plea is voluntary and that there is a factual basis for the plea. Fed. R. Crim. P.
11(b)(2), (3). The district court’s decision to accept or reject a plea is reviewed
for abuse of discretion. United States v. Young, 45 F.3d 1405, 1414 (10th Cir.
1995).
The district court’s questions of Lechner were intended to establish a
factual basis for the plea and confirm the plea was voluntary. When the district
court asked Lechner if she committed the assault knowingly, Lechner responded,
“Well, I guess I should say yes.” The district court then instructed her to tell the
truth, and she denied having the requisite mens rea: “I didn’t know at the time
that I hit her.” The district court asked her a third time whether she intentionally
assaulted Cockerham, and Lechner’s reply was, “I did not intentionally insult []
her, no.” In light of the previous questions, it is clear Lechner intended to give a
responsive answer to the question posed by the district court. The only
reasonable interpretation of her statement was that she did not intend to
assault Cockerham. It was certainly not an abuse of discretion for the district
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court, which actually heard Lechner’s answer and observed her demeanor while
she spoke, to interpret the comment as a refusal to admit to intentional assault. In
addition, Lechner had twice previously denied she had the required state of mind,
further supporting the district court’s decision to reject the plea based on an
insufficient factual basis.
Lechner notes the signed plea agreement contained a factual recitation with
all of the required elements of the crime. Because she signed the agreement and
admitted to the truth of the factual recitation, Lechner argues the district court
erred in finding there was no factual basis for the plea. This argument, if
accepted, would prohibit a district court from inquiring further into the factual
basis for a plea agreement if the written agreement contained admissions as to all
the elements of the crime. Under Fed. R. Crim. P. 11(b)(3), however, the district
court has a duty to “determine that there is a factual basis for the plea.” As part
of that duty, the district court may choose to verify, in open court, the assertions
made in the written plea agreement. Here, the district court did exactly that, and
Lechner refused, after repeated questioning, to admit to all the elements of the
crime. Lechner’s position is also inconsistent with our precedent permitting a
“district court, once it has accepted a plea, to reject it after the discovery of facts
inconsistent with the plea.” United States v. Moran, 452 F.3d 1167, 1171 (10th
Cir. 2006). Under these circumstances, the district court did not abuse its
discretion in refusing to accept Lechner’s plea.
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B. Advisement of Right to Not Testify
Lechner also contends the district court improperly interfered with her
constitutional right to testify in her own defense when it informed her of the
consequences of testifying and failing to testify. In particular, she takes issue
with the district court telling her, “I am only going to be deciding what the
government—whether or not the government has proved you guilty beyond a
reasonable doubt as to each and every element of the charges. So your failure to
testify will not have any impact on my decision making whatsoever.” Lechner
contends this statement was legally incorrect and was a signal that the district
court would reject her testimony.
Lechner contends the statement was legally incorrect because her defense
was based on self-defense. Because of this, she argues, the district court was not
simply deciding whether the government proved each of the elements, because
even if it did so she could still be acquitted if there was a finding of self-defense.
Lechner did not object to the district court’s statement at trial. It is reviewed,
therefore, under a plain error standard. United States v. Taylor, 514 F.3d 1092,
1095-96 (10th Cir. 2008). Under that standard, reversal is proper only “when
there is (1) error, (2) that is plain, which (3) affects the defendant’s substantial
rights, and which (4) seriously affects the fairness, integrity, or public reputation
of judicial proceedings.” Id. at 1100.
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We conclude the judge did not plainly err in giving his statement. The
judge correctly stated the government bore the burden of proving Lechner’s guilt
beyond a reasonable doubt. When a defendant presents evidence supporting a
self-defense theory, the government also bears the burden of proving the
defendant did not act in self-defense. United States v. Corrigan, 548 F.2d 879,
883 (10th Cir. 1977). 3 Even though the district court did not explain the
government also bore the burden of disproving her self-defense theory, there was
no implication Lechner bore the burden of proof on this or any other issue. Any
error on the part of the district court in mentioning the burden of proof without
also explaining it applied to the self-defense theory was not plain.
Lechner also contends the district court’s statement that the “failure to
testify will not have any impact on [its] decision making whatsoever” gave her
the reasonable impression her testimony would be meaningless. We reject this
contention as well. The district court did not tell Lechner that testifying would
have no impact on its decision, but stated only that her failure to testify would
have no impact. This comment came after the district court stated, “if you chose
3
It is true the government’s burden to disprove a self-defense theory is only
triggered when the defendant has presented evidence that, if believed, would
support such a theory. United States v. Montoya, 676 F.2d 428, 431 (10th Cir.
1982). The district court did not address the threshold defense burden, but its
failure to do so was not plain error. The district court made a finding that, even if
Lechner were defending herself from aggression, she used more force than was
reasonably necessary under the circumstances. Thus, the district court did not
reject Lechner’s self-defense theory on the grounds that she did not meet her
threshold evidentiary burden.
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not to testify, I won’t make any inference from that whatsoever.” Taken together,
these statements indicate the district court was explaining it would not draw a
negative inference from her failure to testify, not that it would disbelieve the
substance of her testimony. As this was a correct statement of the law, the
district court did not commit error, let alone plain error.
Finally, Lechner contends the entire exchange was an inappropriate
interference with her decision to testify. In support, she relies on United States v.
Leggett, 162 F.3d 237, 249 (3d Cir. 1998). Leggett, however, involved a very
different situation. In that case, defense counsel informed the court the defendant
wanted to testify against counsel’s advice. Id. at 248. The court told the
defendant to heed the advice of his attorney. Id. The next day, the court called
the attorney to sidebar and inquired, outside of the defendant’s hearing, whether
the defendant would testify. Id. Counsel indicated he would not. Id. On appeal,
the defendant argued the court inappropriately interfered with his decision
whether or not to testify. Id. The Third Circuit called the court’s actions “highly
inappropriate,” stating it “rashly injected itself into a discourse better left to the
attorney and client.” Id. at 249. It held, nonetheless, there was no reversible
error because there was no evidence the defendant actually wanted to testify when
his attorney told the court he did not. Id.In contrast to the situation in Leggett, the district court here did not inject
itself into a dispute between Lechner and her attorney regarding trial strategy.
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The district court simply informed Lechner of her right not to testify, the
government’s burden of proof, and her duty to answer questions if indeed she did
testify. Additionally, in sharp contrast with what happened in Leggett, the district
court asked Lechner herself if she wanted to testify. This is not, therefore, a
situation where the district court took the decision whether or not to testify away
from the defendant. We conclude the district court did not impermissibly
interfere with Lechner’s right to testify, and therefore there was no plain error.
IV. Conclusion
For the foregoing reasons, the judgment of the district court is affirmed.
ENTERED FOR THE COURT
Michael R. Murphy
Circuit Judge
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