F I L E D
                                                                 United States Court of Appeals
                                                                         Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                          JUL 7 2000
                                   TENTH CIRCUIT
                                                                    PATRICK FISHER
                                                                             Clerk

 UNITED STATES OF AMERICA,

          Plaintiff-Appellee,
 v.                                                    No. 99-2233
                                                (D.C. No. CR-98-252-MV)
 MICHAEL V. PEMBERTON,                                 (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        This order and judgment is not binding precedent, except under the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 Barton’s. 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 thirty-

pack of twelve-ounce cans), and returned to Pemberton’s home. Upon their

return, Pemberton’s 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 “I’ll 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

Redhouse’s 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.




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

                                        -3-
      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 Redhouse’s hands when

he was shot.

                                  DISCUSSION

      Appellant alleges four sources of error: (1) the prosecutor’s comments to

the jury during closing argument regarding the availability of the self-defense


                                        -4-
justification to a voluntarily intoxicated defendant; (2) the prosecutor’s

questioning and argument regarding the defendant’s apparent failure to mention in

his post-arrest statements the victim’s possession of a knife; (3) the prosecutor’s

comments that the defendant’s presence at trial allowed him to tailor his

testimony; and (4) the prosecutor’s comments regarding defense counsel’s failure

to mention the victim’s 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,

, 1143 (10th Cir. 1999); United States v. Mills, 

,

1113 (10th Cir. 1999); United States v. Oberle, 

, 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, 

, 467 (1997)

(quoting United States v. Olano, 

, 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


                                           -5-
respect to prejudice.” 

. However, “[w]e apply this

standard of review with somewhat less rigidity given [a] claim [that] alleges

constitutional error.” United States v. Lindsay, 

, 1140 (10th Cir.

1999).

         I. Prosecutor’s Comments Regarding the Availability of the Self-
         Defense 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 attorney’s

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 wasn’t reasonable,
         then he’s 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 that’s not
         proper self-defense.
                Now, having said all that, do you really think it was self-
         defense?

                                           -6-
(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 prosecution’s reference to this excused venire person’s belief was

clearly an attempt to suggest to the jury that Appellant’s 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, 

, 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 defendant’s 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, 

, 505 (8th Cir. 1996), but the mere

fact of a defendant’s intoxication does not preclude a self-defense justification.

Thus, we conclude that the prosecutor’s comments erroneously stated the law.

        “Certainly, it is improper for the prosecution to misstate the law in its

closing argument.” United States v. Hollis, 

, 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 court’s legal instructions, not the prosecutor’s.” 

.

        Moreover, an error does not affect the defendant’s “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 self-

defense claim absent the prosecutor’s 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


                                           -8-
event, we conclude that the prosecutor’s misstatement of the law did not affect

the Appellant’s “substantial rights,” and thus there was no plain error.

      II. The Prosecutor’s Questioning and Argument Regarding
      Appellant’s Post-Arrest Statements

      Appellant also argues that the prosecution committed plain error by

referring to Appellant’s 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 defendant’s post-arrest, post-Miranda silence, a prosecutor

may impeach a defendant’s trial testimony with prior inconsistent statements.”

United States v. Canterbury, 

, 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

government’s contention that “Pemberton made numerous, detailed, inculpatory

statements.” Moreover, Agent Vedral testified that his notes were incomplete

because “I couldn’t 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:



                                          -9-
            I asked them to leave they won’t then this guy starts to push
      me around so I had to defend myself.

            I tried to get this guy to leave but he won’t. I’m 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 didn’t 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, 

, 890 (10th Cir. 1995).

      Whether a prosecutor has committed a due process violation under Doyle v.

Ohio, 

, 610 (1976), 2 “turns on whether the [questions and comments



      2
        “[I]t would be fundamentally unfair to allow an arrestee’s 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, 

, 610 (1976).

                                        - 10 -
were] designed to impeach the defendant’s trial testimony by calling attention to

prior inconsistent statements or, instead, [were] designed to suggest an inference

of guilt from the defendant’s post-arrest silence.” 

.

“‘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, 

, 235 (10th Cir. 1988)

(quoting United States v. Morales-Quinones, 

, 613 (10th Cir. 1987).

Accordingly, we must examine the prosecutor’s 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 prosecution’s

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

defendant’s failure to mention previously such an important fact is actually


                                         - 11 -
consistent with his subsequent testimony. Although incomplete, Appellant’s post-

arrest statements do contain some degree of detail suggesting that he would have

mentioned the knife had it actually been present. For example, Agent Vedral’s

notes of Appellant’s oral statement refer to specific comments made by the victim

and the fact that the victim kept “verbally attacking me.” Moreover, Appellant’s

written statement described both his and the victim’s 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, Appellant’s

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 Appellant’s trial testimony was inconsistent

with these prior statements and therefore impeachable. Thus, any error committed

by the prosecution in referring to Appellant’s failure to mention the knife in his

post-arrest statements was not plain.

      III. Prosecutor’s Comments Regarding Defendant’s Presence at Trial
      Potentially Influencing His Testimony

      Appellant complains that the prosecutor impermissibly commented on the

fact that Appellant’s presence at trial allowed him the opportunity to tailor his

own testimony accordingly. In closing argument, the prosecutor said to the jury

when discussing Appellant’s testimony regarding the butcher knife: “Remember,

Ladies and Gentlemen, this man has been sitting in here the entire time, hearing

                                        - 12 -
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, 

(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 defendant’s presence in the courtroom provides him

a unique opportunity to tailor his testimony is appropriate–and indeed, given the

inability to sequester the defendant, sometimes essential–to the central function of

the trial, which is to discover the truth.” 

In light of this decision, we

must reject Appellant’s argument that the prosecutor’s comments were

unconstitutional.

      IV. Prosecutor’s Comments Regarding Defense Counsel’s Failure to
      Mention a Knife in His Opening Statement

      Appellant alleges that the prosecutor made improper remarks during his

closing argument regarding defense counsel’s 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 didn’t even tell his

own lawyer about that knife. You didn’t hear a word about that knife in opening

                                         - 13 -
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 didn’t 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 court’s admonition to the jury was

insufficient to correct the improper statements about communications between the

Appellant and his trial counsel. Appellant argues that the prosecutor’s subsequent

comments “essentially repeated” the prior improper statements. We disagree.

      The prosecutor’s statements following the sustained objection and the

court’s admonition to the jury highlighted the prosecution’s argument regarding

the defendant’s 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 prosecution’s 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 prosecutor’s

comments following the objection are of the same variety. Accordingly, we find

no plain error in the prosecutor’s comments.

                                  CONCLUSION


                                        - 14 -
      In sum, we find no plain error in the prosecutor’s 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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