Filed: Jun. 05, 2018
Latest Update: Mar. 03, 2020
Summary: FILED United States Court of Appeals PUBLISH Tenth Circuit UNITED STATES COURT OF APPEALS June 5, 2018 Elisabeth A. Shumaker FOR THE TENTH CIRCUIT Clerk of Court _ UNITED STATES OF AMERICA, Plaintiff-Appellee, v. No. 17-2104 CORNELIA TOM TAPAHA, Defendant-Appellant. _ Appeal from the United States District Court for the District of New Mexico (D.C. No. 1:16-CR-01099-MV-1) _ Justine Fox-Young, Albuquerque, New Mexico (Robert J. Gorence, Gorence & Oliveros, Albuquerque, New Mexico, with her on the
Summary: FILED United States Court of Appeals PUBLISH Tenth Circuit UNITED STATES COURT OF APPEALS June 5, 2018 Elisabeth A. Shumaker FOR THE TENTH CIRCUIT Clerk of Court _ UNITED STATES OF AMERICA, Plaintiff-Appellee, v. No. 17-2104 CORNELIA TOM TAPAHA, Defendant-Appellant. _ Appeal from the United States District Court for the District of New Mexico (D.C. No. 1:16-CR-01099-MV-1) _ Justine Fox-Young, Albuquerque, New Mexico (Robert J. Gorence, Gorence & Oliveros, Albuquerque, New Mexico, with her on the ..
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FILED
United States Court of Appeals
PUBLISH Tenth Circuit
UNITED STATES COURT OF APPEALS June 5, 2018
Elisabeth A. Shumaker
FOR THE TENTH CIRCUIT Clerk of Court
_________________________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 17-2104
CORNELIA TOM TAPAHA,
Defendant-Appellant.
_________________________________
Appeal from the United States District Court
for the District of New Mexico
(D.C. No. 1:16-CR-01099-MV-1)
_________________________________
Justine Fox-Young, Albuquerque, New Mexico (Robert J. Gorence,
Gorence & Oliveros, Albuquerque, New Mexico, with her on the briefs),
for Defendant-Appellant.
Marisa A. Ong, Assistant United States Attorney (James D. Tierney, Acting
United States Attorney, with her on the brief), Las Cruces, New Mexico,
for Plaintiff-Appellee.
_________________________________
Before MATHESON, KELLY, and BACHARACH, Circuit Judges.
_________________________________
BACHARACH, Circuit Judge.
_________________________________
Ms. Cornelia Tapaha was convicted of assault for hitting her
boyfriend, Mr. Myron Yazzie, with her car. She appeals this conviction,
arguing that the district court
violated her constitutional right to present a defense by
excluding certain testimony from three witnesses: (1) Ms.
Tamara Tapaha, Cornelia’s sister; 1 (2) Mr. Yazzie; and (3)
Cornelia herself,
violated the Confrontation Clause by excluding certain
testimony by Mr. Yazzie, and
erred in refusing to admit redacted portions of an interview
with a law-enforcement officer.
We conclude that
exclusion of the testimony did not deprive Cornelia of her right
to present a defense,
exclusion of certain testimony by Mr. Yazzie did not violate
the Confrontation Clause, and
the district court did not err in excluding the redacted interview
statements.
Therefore, we affirm.
I. Background
To analyze Cornelia’s appellate arguments, we begin with the acts
underlying the conviction and consider how they related to the evidence
that was excluded.
A. Cornelia runs her car into Mr. Yazzie, allegedly in self-
defense.
The acts underlying the conviction are largely undisputed. Cornelia
and Mr. Yazzie picked up Tamara, and the three of them drank together in
1
For ease of reference, we refer to the Tapahas by their first names.
2
the car. As Mr. Yazzie drove, he grew increasingly agitated by Cornelia’s
need to make frequent stops so that she could urinate.
When they arrived at a gas station, Cornelia went inside and Mr.
Yazzie retrieved a large wrench and put it in the back seat. On returning to
the car, Cornelia learned about the wrench; she later confronted Mr. Yazzie
about what he was planning to do with it. Mr. Yazzie responded by
punching Cornelia in the face, and the two continued to bicker.
Eventually, Mr. Yazzie exited the car while yelling at Cornelia.
Cornelia followed Mr. Yazzie with the car and “nicked” him once.
Appellant’s App’x, vol. 2 at 792. At that point, Mr. Yazzie started
pounding on the hood and yelling. He then moved away, 2 and Cornelia
struck him again with the car.
In district court, Cornelia asserted self-defense, alleging that she had
been scared because of years of abuse by Mr. Yazzie. To support this
defense, Cornelia sought to present evidence of Mr. Yazzie’s past acts of
violence.
The district court allowed Cornelia, Tamara, and Mr. Yazzie to
testify about the day of the incident and three prior instances of Mr.
2
Cornelia testified that Mr. Yazzie had moved a short distance away
and then “was standing there” when she hit him the second time.
Appellant’s App’x, vol. 2 at 793. In contrast, Tamara testified that Mr.
Yazzie had “kind of [run]” before Cornelia struck him. Id. at 623.
3
Yazzie’s violence toward Cornelia. But the court excluded testimony about
other acts of violence.
B. Cornelia tells a police officer about past acts of violence,
but the court admits only a redacted version of the
statements.
After hitting Mr. Yazzie with her car, Cornelia spoke to a police
officer (Mr. Jefferson Joe). At trial, Officer Joe testified about some of
Cornelia’s statements. Cornelia sought introduction of other statements
that she had made to Officer Joe, but the district court excluded them.
II. Constitutional Right to Present a Defense
In claiming the denial of a constitutional right to present a defense,
Cornelia relies on the exclusion of testimony by herself, Tamara, and Mr.
Yazzie.
A. Standard of Review
For this claim, we apply
the abuse-of-discretion standard to the district court’s
application of the Federal Rules of Evidence and
de novo review to the constitutionality of the evidentiary
rulings.
See United States v. Dowlin, 408 F.3d 647, 659 (10th Cir. 2005).
B. The Admitted Testimony
To apply this standard, we must consider how the excluded testimony
related to the evidence introduced at trial.
4
1. The Day of the Incident
The district court allowed extensive testimony by Cornelia and
Tamara about the day of the incident. The sisters described the events on
the day in question, which included four relevant facts:
1. The sisters feared what Mr. Yazzie might do with the wrench
after retrieving it.
2. After leaving the gas station, Cornelia and Mr. Yazzie argued
and Mr. Yazzie seemed “jealous about something.” Tamara
testified that Mr. Yazzie had frequently gotten jealous and that
when he did, he would get mad at Cornelia. Appellant’s App’x,
vol. 2 at 615.
3. Mr. Yazzie tried to hit Cornelia multiple times and landed a
blow to her face while she was driving, causing her to swerve.
4. After they pulled over, Tamara left the car and started walking
away. Cornelia testified that at that point, Mr. Yazzie hit her
again and threatened her, saying that he wished she was dead
and that he would “make [going to jail] worth it this time.” Id.
at 788.
In testifying about these facts, Cornelia stated that she had hit Mr.
Yazzie with the car to protect herself, explaining that she wanted to scare
him because he would otherwise have continued to hurt her if he had
reentered the car. Id. at 794.
2. Mr. Yazzie’s Prior Acts of Violence
The district court also admitted testimony from the three witnesses
about Mr. Yazzie’s prior violence toward Cornelia. For example, Cornelia
testified that Mr. Yazzie would “usually” hit her with a closed fist and that
5
his blows would “always [be] on the face.” Id. at 757. 3 Mr. Yazzie added
that he had hit Cornelia when they were living together and that he had
gone to jail as a result.
The witnesses also testified about three prior incidents.
First, both sisters testified that on Halloween a few years earlier,
Tamara, Cornelia, and Mr. Yazzie had been drinking in a car;
Mr. Yazzie had gotten drunk, stopped the car, and argued with
Cornelia; and
Mr. Yazzie then hit Cornelia in the face and pushed her into
oncoming traffic.
Second, Cornelia testified about a past incident in which Mr. Yazzie
had punched her in the face and stabbed her brother in the chest with a
knife. Mr. Yazzie corroborated this incident, though he claimed that he had
only “poked” Cornelia’s brother with the knife. Id. at 711.
Third, Cornelia testified about another incident in which Mr. Yazzie
had hit her twice in the face with his fist.
C. The Excluded Testimony
Cornelia unsuccessfully tried to present additional testimony from
the three witnesses. That testimony would have encompassed both the day
of the incident and Mr. Yazzie’s prior acts of violence.
3
Cornelia included multiple references to what would “always” or
“usually” happen. But the district court tried to limit these references and
told the jury to disregard them.
6
1. The Day of the Incident
The proposed testimony included a proffer of testimony by Mr.
Yazzie about the day of the incident. Mr. Yazzie would have testified that
he believed that Cornelia’s running him over was an accident
and that Cornelia had not been trying to hurt him,
he had heard that he could “get pretty aggressive” when he
blacked out,
he had a violent character and had gone to jail for drunken
violence,
he got what he deserved because of his aggression and past
violence toward Cornelia, and
he “probably” would have “continued to hurt [Cornelia] had she
not stopped [him] by hitting [him] with the car” because of his
penchant for violence.
Id. at 727, 729. The district court excluded Mr. Yazzie’s proposed
testimony about Cornelia’s state of mind on the ground of relevance. In
addition, the court excluded the other proposed testimony without an
explanation.
2. Mr. Yazzie’s Prior Acts of Violence
The district court also excluded testimony that would have provided
greater detail about Mr. Yazzie’s history of violence toward Cornelia.
First, the three witnesses would have testified generally about Mr.
Yazzie’s past violence. For example, Mr. Yazzie would have testified that
he had a short fuse when drinking and
he had pushed Cornelia against the wall a few times.
7
Similarly, Tamara would have testified that Mr. Yazzie had frequently
been violent to Cornelia and would push her around two to three times per
month, often using a closed fist to hit Cornelia in the chest or face. And
Cornelia would have testified that Mr. Yazzie had abused her throughout
their relationship. This abuse, inflicted about every other week, generally
involved blows to Cornelia’s face or head.
The three witnesses also would have testified about additional
incidents of violence. For example, Tamara would have testified about two
incidents:
1. Mr. Yazzie once drank heavily and acted cruelly to Cornelia.
When the two of them went to their bedroom, Tamara heard
yelling and thumps from Cornelia getting thrown against the
wall. Tamara then saw Mr. Yazzie slap Cornelia in the face.
2. Another time, Tamara heard Mr. Yazzie push Cornelia against
the wall and saw him hit her head against the wall.
Likewise, Cornelia would have testified about three other incidents:
1. Mr. Yazzie once hit Cornelia’s brother on the head with a
wrench. This was the same wrench that Mr. Yazzie had
retrieved before getting hit with the car.
2. Three or four times, Mr. Yazzie locked Cornelia out of their
apartment and she had to sleep in the car.
3. Twice, Mr. Yazzie smashed the windows of Cornelia’s car—
once while she was still in the car.
8
Cornelia tried to use this history of abuse to bolster her self-defense
claim; she would have testified that these experiences led her to fear for
her safety on the day of the incident.
The district court excluded the proposed testimony, reasoning that
testimony had already been presented on the most serious prior
incidents and
the lack of specific descriptions or dates for the incidents had
rendered them insufficiently similar or close in time to the
events underlying the present charge against Cornelia.
The court also noted that (1) the wrench was not used on the day of the
incident and (2) the prior incident with the wrench had taken place much
earlier.
D. The Constitutional Analysis
Cornelia argues that exclusion of the proffered testimony violated
her constitutional right to present a defense. The Fifth and Sixth
Amendments grant a defendant the “right to testify, present witnesses in
his own defense, and [] cross-examine witnesses against him—often
collectively referred to as the right to present a defense.” United States v.
Markey, 393 F.3d 1132, 1135 (10th Cir. 2004). But this right is not
absolute; a defendant must still “‘abide the rules of evidence and
procedure.’” United States v. Dowlin,
408 F.3d 647, 659 (10th Cir. 2005)
(quoting United States v. Bautista,
145 F.3d 1140, 1151 (10th Cir. 1998));
see Taylor v. Illinois,
484 U.S. 400, 410 (1988) (“The accused does not
9
have an unfettered right to offer testimony that is . . . inadmissible under
standard rules of evidence.”).
In light of the need to satisfy evidentiary requirements, Cornelia
bears a two-part burden on her constitutional claim. First, she must
demonstrate that the district court abused its discretion in excluding the
evidence. Dowlin, 408 F.3d at 659. Second, she must demonstrate that the
excluded evidence “‘was of such an exculpatory nature that its exclusion
affected the trial’s outcome.’”
Id. (quoting Richmond v. Embry,
122 F.3d
866, 872 (10th Cir. 1997)).
Attempting to satisfy this two-part burden, Cornelia argues that
the excluded evidence was admissible under Federal Rules of
Evidence 404(b) and 405 and
the erroneous exclusion of this evidence impaired her ability to
present her central claim of self-defense.
Although she was able to describe her fear on the day of the incident,
Cornelia argues that
her abusive relationship with Mr. Yazzie affected the objective
reasonableness of her fear and
the jury could not properly assess Cornelia’s stated fears
without knowing about Mr. Yazzie’s abusive history.
We conclude that the district court acted within its discretion in
excluding some of Mr. Yazzie’s proffered testimony based on the Federal
Rules of Evidence. Even if the other proffered testimony should have been
10
allowed under the federal evidentiary rules, exclusion would not have
infringed Cornelia’s constitutional right to present a defense.
1. Properly Excluded Statements by Mr. Yazzie
Some of Mr. Yazzie’s proffered testimony was impermissibly
speculative, warranting exclusion under the Federal Rules of Evidence. 4
Under these rules, a witness can testify about something only if he or she
has personal knowledge. Fed. R. Evid. 602; see Fed. R. Evid. 701 (stating
that a witness can give an opinion only if it is “rationally based on the
witness’s perception”). Accordingly, testimony is inadmissible when it is
speculative. See Hill v. J.B. Hunt Transp., Inc., 815 F.3d 651, 666 n.10
(10th Cir. 2016).
Two of Mr. Yazzie’s statements were properly excluded as
speculative:
1. Mr. Yazzie characterized the incident as an accident and
thought that Cornelia had not intended to hurt him.
2. Mr. Yazzie stated that he probably would have continued to
hurt Cornelia if she had not run him over, which was based on
his statement that he tends to be aggressive when he blacks out.
For the first statement, Mr. Yazzie would have testified about
Cornelia’s state of mind. But Mr. Yazzie admittedly lacked any
recollection of the incident; thus, his surmise about Cornelia’s thinking
4
The district court did not rely on the speculative nature of this
testimony. But we may affirm the court’s decision on any basis supported
by the record. United States v. Pam, 867 F.3d 1191, 1195 n.1 (10th Cir.
2017).
11
was not based on his personal knowledge. See Lowry v. City of San Diego,
858 F.3d 1248, 1255-56 (9th Cir. 2017) (en banc) (upholding the district
court’s exclusion of testimony because the witness was sleeping at the time
of the event, preventing the “personal knowledge” required by the Federal
Rules of Evidence).
For the second statement, Mr. Yazzie would have opined that
Cornelia needed to act in self-defense because he probably would have
continued to hurt her if she had not run him over. Mr. Yazzie did not
profess to remember that he had intended to hurt Cornelia; rather, he
testified that others had remarked that he would act aggressively when
blacking out during his drunken spells. He therefore stated that
he tends to act violently when drinking and
“because of . . . [his] character trait for violence,” he
“probably” would have continued to hurt Cornelia if she had
not taken action.
Appellant’s App’x, vol. 2 at 729.
But Mr. Yazzie admitted that he could not recall being run over, what
his intentions had been, or how much of a threat he had posed to Cornelia.
His testimony was merely that he tends to act violently when drunk and
that his drunkenness would probably have led him to inflict more injuries
if Cornelia had not stopped him. This speculation was not admissible under
the Federal Rules of Evidence. See p. 11, above.
12
2. The Remaining Testimony that Was Excluded
The other excluded testimony falls within four general categories:
1. Additional details involving Mr. Yazzie’s abuse of Cornelia
throughout the relationship,
2. Mr. Yazzie’s character for violence when drunk,
3. the incident when Mr. Yazzie hit Cornelia’s brother with a
wrench, and
4. the two incidents in which Mr. Yazzie smashed the windows of
Cornelia’s car.
See Part II(C), above. Cornelia argues that this testimony was necessary to
show the reasonableness of her fear when she hit Mr. Yazzie with the car.
But even if the district court had abused its discretion in excluding this
evidence, the ruling would not have violated the right to present a defense.
Our assumption of evidentiary error would satisfy the first step of the
constitutional analysis. See p. 10, above. At the second step, we consider
whether the excluded evidence “‘was of such an exculpatory nature that its
exclusion affected the trial’s outcome.’” United States v. Dowlin, 408 F.3d
647, 659 (10th Cir. 2005) (quoting Richmond v. Embry,
122 F.3d 866, 872
(10th Cir. 1997)); see p. 10, above. This inquiry consists of two questions:
1. Was the proffered testimony “‘the type that if believed would
have, by necessity, exculpated the defendant’”?
2. If the proffered testimony had been admitted, would it “‘have
created a reasonable doubt that did not exist without the
evidence’”?
13
Dowlin, 408 F.3d at 660 (quoting
Richmond, 122 F.3d at 874). The answer
to both questions is “no.”
First, even if the excluded evidence had been relevant, this evidence
would not necessarily have proven the reasonableness of Cornelia’s fear of
serious bodily injury. See United States v. Toledo, 739 F.3d 562, 567 (10th
Cir. 2014) (stating that a valid self-defense claim requires that the fear of
harm be reasonable). Cornelia does not argue otherwise, asserting only that
the excluded evidence would have created a “reasonable probability” of a
different outcome. Appellant’s Opening Br. at 50.
Second, if the excluded testimony had been admitted, it would not
have created a reasonable doubt about the outcome based on the
cumulativeness of the evidence and the weakness of Cornelia’s self-
defense claim.
a. Cumulativeness
The excluded evidence would not have added anything significant to
the testimony already admitted. The four categories of excluded evidence
might have been relevant to explain Cornelia’s fear of Mr. Yazzie. But the
jury had already heard ample evidence about why Cornelia was scared. For
example, the jury had already heard about Mr. Yazzie’s frequent acts of
drunken violence and his violence on the day of the incident. Thus, the
jury was fully aware that
14
Cornelia had been abused by Mr. Yazzie throughout their
relationship and
this abuse had continued on the day of the incident.
Additional details about Mr. Yazzie’s past abuse and his character for
violence would not have meaningfully added to the existing evidence.
In addition, the prior incident involving the wrench would have
added little to the extensive evidence of violence already presented to the
jury. The wrench was arguably relevant because its presence might have
frightened Cornelia. But Cornelia had an extensive opportunity to testify
about the wrench and did, describing what she thought when she learned
that Mr. Yazzie had retrieved the wrench and put it in the back seat.
The window-breaking incidents would likewise have added little.
Cornelia testified that Mr. Yazzie had nothing in his hands when she ran
him over; in the prior incidents, Mr. Yazzie had broken the car windows
with cinder blocks and an iron bar. To the extent that Cornelia was afraid
Mr. Yazzie might nonetheless break her car windows, she had an ample
opportunity to testify about her fear of Mr. Yazzie at the time of the
incident.
In these circumstances, we conclude that the excluded testimony
would have added relatively little to the evidence that was ultimately
allowed.
15
b. Weakness of Cornelia’s Self-Defense Claim
Even with the additional testimony, Cornelia’s assertion of self-
defense would have remained weak. It was undisputed that
Mr. Yazzie had exited the car and was walking away before
Cornelia “nicked” him the first time and
Mr. Yazzie had then walked or run away from the vehicle and
had his back to Cornelia when she struck him the second time.
When walking or running away, Mr. Yazzie was empty-handed, and
Cornelia could have driven away or called the police. See United States v.
Talamante, 981 F.2d 1153, 1157 (10th Cir. 1992) (noting that a self-
defense claim fails when the defendant could have safely withdrawn from
the conflict but did not do so). And Cornelia never told law-enforcement
officials that she had acted in self-defense; instead, she admitted hitting
Mr. Yazzie because she was angry. In these circumstances, we conclude
that Cornelia’s self-defense claim was weak.
* * *
If the excluded evidence had been admitted, it would not have
created a reasonable doubt about the outcome. Therefore, any error in
excluding this evidence did not violate Cornelia’s constitutional right to
present a defense. See id. (holding that there was no violation of the right
to present a defense because the defendant “had the opportunity to testify,
to state that he feared the victim, to argue self-defense, and to [examine]
16
the victim and bring out the facts related to the victim’s propensity for
violence”).
III. Confrontation Clause
In addition, Cornelia urges a violation of the Confrontation Clause
when the district court restricted her cross-examination of Mr. Yazzie. 5 But
Mr. Yazzie was Cornelia’s own witness, and he was never declared
adverse. Cornelia accordingly conducted a direct examination of Mr.
Yazzie, and it was the government that cross-examined him.
Cornelia provides no explanation or support for her contention that
she had a right to cross-examine Mr. Yazzie. Rather, this argument is just
another way of claiming that the district court infringed Cornelia’s right to
present a defense by excluding Mr. Yazzie’s proffered testimony. See
Richmond v. Embry, 122 F.3d 866, 871 (10th Cir. 1997) (noting that the
right to present defense-witness testimony implicates the rights to due
process and compulsory powers rather than the Confrontation Clause);
accord United States v. Wilkens,
742 F.3d 354, 364 (8th Cir. 2014)
(holding that the Confrontation Clause does not apply to exclusion of
testimony from the defense’s own witnesses).
5
Cornelia forfeited this argument by failing to raise it in district
court. United States v. Williams, 888 F.3d 1126, 1131 (10th Cir. 2018). But
the government does not argue for forfeiture; we therefore exercise our
discretion to consider this argument on the merits. See
id.
17
IV. Redacted Interview Statements
Finally, Cornelia claims that the district court erred by excluding
portions of an interview that she had given to Officer Joe shortly after the
incident. The government presented a redacted version of the interview. In
this version, Cornelia stated that she had run over Mr. Yazzie because she
was mad at him. But the government excised all of Cornelia’s references to
Mr. Yazzie’s past abuse. Cornelia unsuccessfully tried to present the
excised portions, arguing that they bore on her assertion of self-defense.
In district court Cornelia recognized that the statements would
ordinarily constitute hearsay, but she argued that the statements were
admissible (1) as prior consistent statements to rebut a charge of recent
fabrication, see Fed. R. Evid. 801(d)(1)(B), 6 and (2) as impeachment of
Officer Joe’s testimony, see Fed. R. Evid. 801(d)(1)(A). We conclude that
the district court did not abuse its discretion in rejecting both arguments.
A. Prior Consistent Statements
Cornelia characterizes the excised statements as prior consistent
statements because they were consistent with her trial theory of self-
6
On appeal, Cornelia argues that the statements were admissible “as
prior consistent statements regarding her reasonable fear of injury.”
Appellant’s Opening Br. at 21. To the extent that Cornelia is arguing that
the statements were admissible to rebut a charge of recent fabrication, that
argument is addressed below. To the extent that Cornelia instead means to
argue that the statements were admissible to prove her state of mind, this
argument was forfeited because it had not been raised in district court.
United States v. Gould, 672 F.3d 930, 938 (10th Cir. 2012).
18
defense. But prior consistent statements are admissible only if they “rebut
an express or implied charge that the declarant recently fabricated [the
testimony].” Fed. R. Evid. 801(d)(1)(B)(i). And when Cornelia proffered
the excised statements, there had not yet been an express or implied charge
of fabrication.
Cornelia points to the government’s subsequent closing argument.
There the government argued that Cornelia’s testimony had been
“completely inconsistent” with her statements to officers. Appellant’s
App’x, vol. 2 at 932. But Cornelia’s theory is unpersuasive because
the government did not present its closing argument until after
Cornelia had offered the excised statements and
the closing argument did not suggest that Cornelia had
fabricated her account.
In its closing argument, the government referred to inconsistencies
between Cornelia’s trial testimony and other evidence. But the government
did not suggest that Cornelia had fabricated her account.
In light of the absence of a prior allegation of recent fabrication, the
district court acted within its discretion in rejecting Cornelia’s theory as a
basis to introduce the excised statements.
19
B. Impeachment
Cornelia insists that the excised statements were also admissible to
impeach Officer Joe’s testimony. We disagree.
At trial, Officer Joe testified:
Q. Now, Mr. Joe, during any of your conversations with the
Defendant in this matter, did she ever claim that she was
physically abused by Myron Yazzie on July 8th of 2015
[the date of the incident]?
A. No.
Q. Did she ever claim that she was threatened by him on July
8th of 2015?
A. No.
Q. Did she ever claim that she was hit or touched by him in
an angry manner on July 8th of 2015?
A. No.
Q. Did she ever claim she had to protect herself or defend
herself from him to protect herself or another person on
July 8th, 2015?
A. No.
Q. Why did she consistently claim that she hit Mr. Yazzie?
A. Because she was mad.
Appellant’s App’x, vol. 2 at 162-63. Cornelia’s interview included this
exchange, which was excluded at trial:
CI Jefferson Joe: All right. What was the argue—besides him
threatening to walk off again, was there some other reasons
why the anger in you just came out?
20
Cornelia Tapaha: We’d been together for like five years and he
used to be really abusive towards me. . . . He used to like hit
me, throw me around, and stuff like that . . . .
. . .
CI Jefferson Joe: I understand that you’re—you’re angry, and
you just told us that, you know, your anger just got out and
with the years of physical abuse and, you know, the drinking
and—and everything just came out.
. . .
CI Jefferson Joe: Your relationship with Myron, you told us
about this five, six years of physical abuse and (inaudible)
mental—mental abuse also. Was there anything in court that
you filed against him?
Appellant’s App’x, vol. 1 at 136, 139, 149.
Cornelia insists that this exchange should have been allowed. For
this contention, Cornelia characterizes Officer Joe’s testimony as stating
that Cornelia had not complained of abuse. According to Cornelia, the
excised statements would undermine this testimony by showing that she
had raised self-defense in her interview. This argument fails because the
excised statements were consistent with Officer Joe’s testimony.
Officer Joe testified only that Cornelia had not said anything about
the need to defend herself on the day of the incident, for every question
asked only what Cornelia had said about that particular day. By contrast,
all of the excised statements pertained to Mr. Yazzie’s past abuse.
Cornelia’s statements about past abuse did not conflict with Officer Joe’s
trial testimony about statements involving the day of the incident.
21
Officer Joe characterized Cornelia’s prior statements as an admission
that she had run over Mr. Yazzie because she was mad. This
characterization of the interview was consistent with Cornelia’s excised
statements. Cornelia never asserted in the interview that she had acted in
self-defense, and she recounted the past abuse to explain why she was mad.
Therefore, the excised statements do not conflict with Officer Joe’s trial
testimony. In these circumstances, we conclude that the district court acted
within its discretion in excluding the excised statements. 7
V. Conclusion
We conclude that
Mr. Yazzie’s speculative testimony was properly excluded
under the Federal Rules of Evidence and the exclusion of other
testimony did not deprive Cornelia of her constitutional right to
present a defense,
Cornelia has not shown a violation of the Confrontation Clause,
and
the district court acted within its discretion in excluding the
excised portions of Cornelia’s statements to Officer Joe.
Therefore, we affirm.
7
The government also argues that Cornelia’s excised statements could
not be used to impeach Officer Joe because they were not his own
statements. See Garcia-Martinez v. City & Cty. of Denver, 392 F.3d 1187,
1194 (10th Cir. 2004) (“[I]mplicit in the use of prior inconsistent
statements to impeach is the requirement that the impeached witness
actually made the prior statement.”). We need not address this argument.
22
