F I L E D

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

United States Court of Appeals

Tenth Circuit

JUL 7 2000

PATRICK FISHER
Clerk

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

MICHAEL V. PEMBERTON,

No. 99-2233
(D.C. No. CR-98-252-MV)
(Dist. N.M.)

Defendant-Appellant.

ORDER AND JUDGMENT *

Before BALDOCK, HOLLOWAY, and EBEL, Circuit Judges.
Defendant-Appellant Michael V. Pemberton was convicted by a jury of
Voluntary Manslaughter, in violation of 18 U.S.C. 1152, and Using and
Carrying a Firearm During a Crime of Violence, in violation of 18 U.S.C.
924(c)(1) and sentenced to 117 months imprisonment. He now appeals the
convictions. We exercise jurisdiction pursuant to 28 U.S.C. 1291 and AFFIRM.

This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. This court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
*

BACKGROUND
In the afternoon of March 10, 1998, Ms. Juanita Barton and her brother,
Mr. Julian Joachine Redhouse, went to the home Pemberton shared with his wife,
Ms. Antoinette Pequin, on the Navajo Reservation near Crystal, New Mexico.
Pequin was a friend of Bartons. Barton and Redhouse brought with them four
tall-boys (forty-ounce containers of beer), which Barton, Redhouse, and
Pemberton then began to drink. No one else was home at the time. Soon
thereafter, the three drove to Gallup, New Mexico, purchased more beer (a thirtypack of twelve-ounce cans), and returned to Pembertons home. Upon their
return, Pembertons son Justin (also known as J.D.) had come home from
school.
The adults continued to drink steadily for several hours. During this time,
Pemberton and Redhouse consumed between ten and twelve beers each, and
Barton consumed approximately eight beers. Pemberton and Redhouse played
checkers for a while in the kitchen, and, Pemberton and his son testified,
Redhouse became angry and verbally abusive toward Pemberton. Pemberton
testified that Redhouse threatened to beat your white ass. Pemberton then put
the checkers game away. Soon thereafter, Justin went to bed.
According to Pemberton, Redhouse grew increasingly belligerent.
Pemberton testified that Redhouse was spending less time sitting down and a
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whole lot more time either cussing me or pushing me around and hitting on me.
Pemberton testified that Redhouse then grabbed a butcher knife that was near the
kitchen sink and began walking toward Pemberton while tossing the knife from
hand to hand. At that time, Pemberton testified, Redhouse said Ill just kill you
and that half breed kid. Pemberton then went to his bedroom and retrieved his
hunting rifle, which was already loaded, and then returned to the kitchen.
Pemberton testified that he was scared of Redhouse, and that Redhouse
looked mean. At this point, Redhouse was seated in a chair in the kitchen.
Pemberton fired a warning shot to scare Redhouse. Then, Pemberton testified,
Redhouse said to him you son of a bitch and started to get up out of the chair.
Pemberton testified that he thought Redhouse was coming after him with the
butcher knife, although Pemberton conceded that he did not see the knife in
Redhouses hands at that moment. Pemberton then fired a second shot, which
struck Redhouse in the neck and killed him.
At approximately 7:00 p.m., Barton had written a note to Pequin, and
Barton then went to use the outhouse. As she exited the outhouse, 1 Barton heard
the two gunshots and quickly came back to the house.

Pemberton testified that Barton had returned from the outhouse before he
fired the gun and was sitting in the kitchen.
1

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When Barton returned, she saw Pemberton standing nearby with the gun in
his hands. The two struggled briefly over the gun, but Pemberton pulled the gun
away from her and left the house. Barton then left the house to go for help.
Pemberton then walked to an unoccupied house nearby. He surrendered to police
the next day.
The following day, FBI Agent Steve Vedral interviewed Pemberton about
the incident. Pemberton signed a waiver of rights form and then orally explained
to Agent Vedral what had happened. Agent Vedral took notes as Pemberton
spoke, but he had difficulty following the events as Pemberton was describing
them. As a result, Agent Vedral asked Pemberton to write out a statement, which
Pemberton agreed to do. After completing the brief written statement, Pemberton
indicated that he did not want to continue the interview. Agent Vedral then
ceased his questioning.
At no point in his oral or written statements did Pemberton specifically
mention that Redhouse had possessed a butcher knife. Although kitchen knives
were found at the scene, none appeared to have been in Redhouses hands when
he was shot.
DISCUSSION
Appellant alleges four sources of error: (1) the prosecutors comments to
the jury during closing argument regarding the availability of the self-defense
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justification to a voluntarily intoxicated defendant; (2) the prosecutors

questioning and argument regarding the defendants apparent failure to mention in
his post-arrest statements the victims possession of a knife; (3) the prosecutors
comments that the defendants presence at trial allowed him to tailor his
testimony; and (4) the prosecutors comments regarding defense counsels failure
to mention the victims alleged possession of a knife in his opening statement.
Defense counsel, however, objected to none of these errors at trial. As a result,
we may only review these claims for plain error. See United States v. Roberts,
185 F.3d 1125, 1143 (10th Cir. 1999); United States v. Mills, 194 F.3d 1108,
1113 (10th Cir. 1999); United States v. Oberle, 136 F.3d 1414, 1421 (10th Cir.
1998).
Under the plain error standard of review, there must be (1) error, (2) that
is plain, and (3) that affects substantial rights. If all three conditions are met,
an appellate court may then exercise its discretion to notice a forfeited error, but
only if (4) the error seriously affects the fairness, integrity, or public reputation
of judicial proceedings. Johnson v. United States, 520 U.S. 461, 467 (1997)
(quoting United States v. Olano, 507 U.S. 725, 732 (1993) (alterations, citation,
and further quotation omitted)). For an error to impact substantial rights, [i]t
must have affected the outcome of the district court proceedings, and [i]t is the
defendant rather than the Government who bears the burden of persuasion with
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respect to prejudice. Olano, 507 U.S. at 734. However, [w]e apply this
standard of review with somewhat less rigidity given [a] claim [that] alleges
constitutional error. United States v. Lindsay, 184 F.3d 1138, 1140 (10th Cir.
1999).
I. Prosecutors Comments Regarding the Availability of the SelfDefense Justification to a Voluntarily Intoxicated Defendant
Appellant claims that one of the prosecutors, Assistant United States
Attorney Kevin Washburn, misstated the law governing the self-defense
justification in his closing statement. Appellant argues that the attorneys
comments led the jury to believe that a voluntarily intoxicated defendant cannot
claim that he responded reasonably to the situation confronting him. The relevant
statements were as follows:
Let me talk about the self-defense part first. One of the rules
that you will see in the instructions is that the use of deadly force is
justified only if a person reasonably believes that force is necessary
to prevent death or bodily injury. If that belief wasnt reasonable,
then hes not entitled to self-defense.
Do you remember voir dire? Do you remember when Mr.
Finzel [defense counsel] and Ms. Bliss [counsel for the government]
were asking you all questions with all the other potential jurors? Do
you remember the man who stood up and he said, self-defense
requires judgment, and he expressed concern about the alcohol use
that had been discussed. That man may not have known it, but he
expressed a pretty good practical explanation of self-defense. It
requires a reasonable belief that you are in trouble. If you are
drunk and you are not thinking reasonably, then thats not
proper self-defense.
Now, having said all that, do you really think it was selfdefense?
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(Tr. 1065-66) (emphasis added).

The juror to whom Mr. Washburn was referring had been excused for cause
during voir dire because the venire person believed that he could not consider the
self-defense justification for a person who had been drinking too much. That is,
the venire person believed that a voluntarily intoxicated individual could not be
thinking reasonably and could therefore not act in self defense.
The prosecutions reference to this excused venire persons belief was
clearly an attempt to suggest to the jury that Appellants intoxication at the time
of the shooting should defeat his claims of self-defense. This statement, however,
misstates the law. [One] may justifiably use deadly force against the other in
self-defense . . . only if he reasonably believes that the other is about to inflict
unlawful death or serious bodily harm upon him (and also that it is necessary to
use deadly force to prevent it). 1 Wayne R. LaFave & Austin W. Scott, Jr.,
Substantive Criminal Law 5.7(b) (West 1986) (footnotes omitted); see also
United States v. Scalf, 725 F.2d 1272, 1273-74 (10th Cir. 1984) (approving the
following jury instruction: Even though a person may be justified in using force
in self-defense, he is not entitled to use any greater force than he had reasonable
ground to believe and actually did believe to be necessary under the
circumstances to save his life or avert serious bodily harm.). The
reasonableness of a voluntarily intoxicated defendants response is measured
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through the eyes of a reasonable sober individual, see 1 LaFave & Scott at
4.10(d); United States v. Weise, 89 F.3d 502, 505 (8th Cir. 1996), but the mere
fact of a defendants intoxication does not preclude a self-defense justification.
Thus, we conclude that the prosecutors comments erroneously stated the law.
Certainly, it is improper for the prosecution to misstate the law in its
closing argument. United States v. Hollis, 971 F.2d 1441, 1455 (10th Cir. 1992).
Nevertheless, the jury in the present case was instructed that [u]se of force is
justified when a person reasonably believes that it is necessary for the defense of
oneself or another against the immediate use of unlawful force. A person acting
in self defense, however, must use no more force that [sic] appears reasonably
necessary under all of the circumstances. Generally, we presume that the jury
followed the courts legal instructions, not the prosecutors. Hollis, 971 F.2d at
1455.
Moreover, an error does not affect the defendants substantial rights
unless it affected the outcome of the proceedings. See Olano at 734. On this
record, we cannot conclude that Appellant would have succeeded on his selfdefense claim absent the prosecutors misstatement. Because Appellant employed
deadly force by firing the rifle, he was required to show that it was reasonable to
believe that Mr. Redhouse posed an imminent threat to him of death or serious
bodily harm. We do not believe the record warrants this conclusion. In any
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event, we conclude that the prosecutors misstatement of the law did not affect
the Appellants substantial rights, and thus there was no plain error.
II. The Prosecutors Questioning and Argument Regarding
Appellants Post-Arrest Statements
Appellant also argues that the prosecution committed plain error by
referring to Appellants failure specifically to mention the presence of a butcher
knife in his post-arrest statements to Agent Vedral. While due process permits
no comment on the defendants post-arrest, post-Miranda silence, a prosecutor
may impeach a defendants trial testimony with prior inconsistent statements.
United States v. Canterbury, 985 F.2d 483, 486 (10th Cir. 1993).
The case at bar presents an instance of partial silence, in which the
defendant made some post-arrest, post-Miranda statements but ultimately invoked
his right to remain silent before completing the discussion. Agent Vedral took
notes during his conversation with Appellant, but these notes hardly support the
governments contention that Pemberton made numerous, detailed, inculpatory
statements. Moreover, Agent Vedral testified that his notes were incomplete
because I couldnt understand what he was trying to say to me as far as the
different events, how they took place.
The statement written by Appellant at the time is similarly brief and
somewhat confusing. The full text of the statement is as follows:

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I asked them to leave they wont then this guy starts to push
me around so I had to defend myself.
I tried to get this guy to leave but he wont. Im scared.
He was acting weird.
I was happy drunk and he was mean drunk.
I fired a warning shot, and this guy comes at me. I fired the
second time to defend myself.
He was about attacking [sic] me.
I didnt plan this, the beer caused all this to happen.
Agent Vedral testified that Pemberton then stopped the interview. As a result,
Agent Vedral further testified, his interview was incomplete because he was not
able to ask Pemberton a number of questions he would have asked during a
normal investigation. Agent Vedral did not ask Pemberton whether the victim
had a weapon at the time of the shooting. Thus, it is clear from the record that
Appellant was partially silent by answering some questions and refusing to
answer others. United States v. May, 52 F.3d 885, 890 (10th Cir. 1995).
Whether a prosecutor has committed a due process violation under Doyle v.
Ohio, 426 U.S. 610, 610 (1976), 2 turns on whether the [questions and comments

[I]t would be fundamentally unfair to allow an arrestees silence to be

used to impeach an explanation subsequently given at trial after he had been
impliedly assured, by the Miranda warnings, that silence would carry no penalty.
Doyle v. Ohio, 426 U.S. 610, 610 (1976).
2

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were] designed to impeach the defendants trial testimony by calling attention to

prior inconsistent statements or, instead, [were] designed to suggest an inference
of guilt from the defendants post-arrest silence. Canterbury, 985 F.2d at 486.
The court must look to the context in which the statement was made in order to
determine the manifest intention which prompted it and its natural and necessary
impact on the jury. United States v. Mora, 845 F.2d 233, 235 (10th Cir. 1988)
(quoting United States v. Morales-Quinones, 812 F.2d 604, 613 (10th Cir. 1987).
Accordingly, we must examine the prosecutors comments and questions in the
present case.
Appellant points to multiple references by the prosecution to the fact that
Appellant did not mention the knife in his statement to Agent Vedral. Our review
of the trial transcript reveals that the prosecution made these references on direct
examination of Agent Vedral, on redirect of Agent Vedral, on cross-examination
of the defendant, on direct examination of Agent Vedral in the prosecutions
rebuttal, and in closing arguments. The thrust of these questions and comments
was to drive home the point that the defendant had never before mentioned a fact
so significant to his theory of self-defense.
The plain error standard of review requires that the mistake be an obvious
one (i.e., plain). In the present case, however, it is not obvious that the
defendants failure to mention previously such an important fact is actually
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consistent with his subsequent testimony. Although incomplete, Appellants postarrest statements do contain some degree of detail suggesting that he would have
mentioned the knife had it actually been present. For example, Agent Vedrals
notes of Appellants oral statement refer to specific comments made by the victim
and the fact that the victim kept verbally attacking me. Moreover, Appellants
written statement described both his and the victims states of mind (I was happy
drunk and he was mean drunk.), as well as how the victim was going to attack
him. Though not an exhaustive account of the these events, Appellants
statements contain a sufficient level of detail suggesting that he would have
mentioned a knife in the hands of the victim. It was, consequently, at least a
matter of some ambiguity whether Appellants trial testimony was inconsistent
with these prior statements and therefore impeachable. Thus, any error committed
by the prosecution in referring to Appellants failure to mention the knife in his
post-arrest statements was not plain.
III. Prosecutors Comments Regarding Defendants Presence at Trial
Potentially Influencing His Testimony
Appellant complains that the prosecutor impermissibly commented on the
fact that Appellants presence at trial allowed him the opportunity to tailor his
own testimony accordingly. In closing argument, the prosecutor said to the jury
when discussing Appellants testimony regarding the butcher knife: Remember,
Ladies and Gentlemen, this man has been sitting in here the entire time, hearing
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every single witness in this case. Appellant argues that this comment violated
his rights to be present at trial and to choose whether to testify in his own
defense.
After the instant case was presented at oral argument, the Supreme Court
issued a decision disposing of this issue. In Portuondo v. Agard, 120 S. Ct. 1119
(2000), the Court concluded that substantially similar comments made by the
prosecutor in closing arguments did not violate the Constitution. Allowing
comment upon the fact that a defendants presence in the courtroom provides him
a unique opportunity to tailor his testimony is appropriateand indeed, given the
inability to sequester the defendant, sometimes essentialto the central function of
the trial, which is to discover the truth. Id. at 1127. In light of this decision, we
must reject Appellants argument that the prosecutors comments were
unconstitutional.
IV. Prosecutors Comments Regarding Defense Counsels Failure to
Mention a Knife in His Opening Statement
Appellant alleges that the prosecutor made improper remarks during his
closing argument regarding defense counsels failure to mention during opening
argument that the victim was wielding a knife when Appellant shot him. After
emphasizing that Appellant had not mentioned the knife in his post-arrest
statements, the prosecutor said to the jury: Now, he probably didnt even tell his
own lawyer about that knife. You didnt hear a word about that knife in opening
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statement. Defense counsel then objected, which the court sustained and
directed the jury to disregard that last comment. The prosecutor then
continued: You heard nothing about that knife until Mr. Pemberton took the
stand. That knife probably didnt exist until that point. Defense counsel did not
object to these ensuing comments, nor did he request a mistrial on the basis of the
sustained objection.
Appellant now contends that the courts admonition to the jury was
insufficient to correct the improper statements about communications between the
Appellant and his trial counsel. Appellant argues that the prosecutors subsequent
comments essentially repeated the prior improper statements. We disagree.
The prosecutors statements following the sustained objection and the
courts admonition to the jury highlighted the prosecutions argument regarding
the defendants failure to mention the knife in his post-arrest statements. The
comments made no reference to communications between the defendant and his
counsel. We have previously explained that the prosecutions repeated references
to the fact that the defendant did not mention the knife in his post-arrest
statements do not constitute plain error. Viewed in context, the prosecutors
comments following the objection are of the same variety. Accordingly, we find
no plain error in the prosecutors comments.
CONCLUSION
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In sum, we find no plain error in the prosecutors comments, questions, or

arguments. The judgment of the district court is therefore AFFIRMED.

ENTERED FOR THE COURT

David M. Ebel
Circuit Judge

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