F I L E D
                                                                     United States Court of Appeals
                                                                             Tenth Circuit
                       UNITED STATES COURT OF APPEALS
                                                                            DEC 27 2001
                                        TENTH CIRCUIT
                                                                         PATRICK FISHER
                                                                                 Clerk

 UNITED STATES OF AMERICA,

                  Plaintiff-Appellee,                      No. 00-2468
           v.                                             D. New Mexico
 RAYMOND JONES,                                      (D.C. No. CR-97-478-LH)

                  Defendant-Appellant.


                               ORDER AND JUDGMENT          *




Before HENRY , BALDOCK , and MURPHY , 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 cause is

therefore ordered submitted without oral argument.

       Raymond Jones appeals from his conviction after a jury trial of second

degree homicide under 18 U.S.C. §§ 1153, 1111, and 2. On appeal, Mr. Jones

contends: (1) the evidence was insufficient to convict; (2) the government’s


       *
        This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The 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.
closing argument contained inflammatory statements that affected his substantial

rights; (3) the trial court erred when it admitted two items of evidence; (4) the

government struck all Native American venire persons, in violation of Batson v.

Kentucky, 

(1986); and (5) he is entitled to reversal on the basis of

cumulative error. We exercise jurisdiction under 18 U.S.C. § 1291 and, for the

reasons set forth below, we affirm.

                                 I. BACKGROUND

      This court vacated Mr. Jones’ first conviction for second degree murder

because the trial court had erred in refusing to give Mr. Jones and his codefendant

an instruction on involuntary manslaughter. See United States v. Yazzie, 

, 1184-87 (10th Cir. 1999). Mr. Yazzie subsequently pleaded guilty to

involuntary manslaughter and Mr. Jones proceeded to trial. Because many of the

relevant uncontested facts in this case are recounted in our previous decision, we

need only summarize them here.

      Thomas Briggs lived in Low Mountain, Arizona. On June 26, 1997, Mr.

Briggs, nicknamed “Eagle,” and his friend Jerome Begay, set off to Shiprock,

New Mexico, after consuming a significant amount of alcohol. Mr. Begay hoped

to purchase parts for his vehicle, and Mr. Briggs planned to pawn a watch so that

he might purchase groceries. En route the two men stopped at two bars in

Farmington, New Mexico.


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      Mr. Briggs called himself a biker. He had previously ridden with a group

called the Banditos, and thought some other bikers might be in the Shiprock area.

He made inquiries about “Turtle,” a nickname for Mr. Jones, who was a biker Mr.

Briggs knew while he was in prison.

      At the Zia Bar in Shiprock, while Mr. Begay remained in the car, Mr.

Briggs met several people, and he mentioned to them he was looking to “party.”

He asked about Turtle specifically. When Brenda Charley discovered Mr. Briggs

was looking for Turtle, she telephoned Mr. Jones. Ms. Charley told Mr. Jones

that a big man with tattoos was asking for a biker named Turtle. Ms. Charley told

Mr. Jones that Mr. Briggs could be found at the Zia Bar.

      At the time, Mr. Jones had been preparing to depart on a road trip with his

friend, Alfred Yazzie. Mr. Jones, who headed up a local biker club called the

Norbanos, proceeded to the Zia Bar on the way out of town.

      Mr. Briggs met several other patrons at the Zia Bar, including Curtis

Benally and Nolan Charley. Mr. Charley thought Mr. Briggs might want to meet

his cousin-brother, Harrington Blueeyes, who was a biker and a was a “hang-

around” member of the Norbanos club. They left the bar in Mr. Begay’s car, with

Mr. Begay driving, to find Mr. Blueeyes. First they went to Mr. Charley’s house,

where he picked up his vehicle. They proceeded to the parking lot of a Seven-

Eleven, where Mr. Charley told them to wait while he went to awaken Mr.


                                        -3-
Blueeyes, who was asleep in his nearby trailer. Initially, Mr. Blueeyes did not

want to accompany Mr. Charley to the parking lot to “party” with Mr. Briggs.

      Meanwhile, approximately twenty to thirty minutes after Mr. Briggs had

departed, Mr. Jones arrived at the Zia Bar. After speaking with several

customers, he learned that Mr. Briggs had left with Mr. Charley and headed for

Mr. Blueeyes’ trailer. Mr. Jones, accompanied by his girlfriend and Mr. Yazzie,

proceeded to Mr. Blueeyes’ trailer. There, Mr. Jones learned that Mr. Briggs was

waiting at the Seven-Eleven parking lot, and he convinced Mr. Blueeyes to

accompany him there.

      Mssrs. Charley and Blueeyes rode together, followed by Mr. Jones and his

two companions. As the cars arrived at the parking lot, the lights from Mr.

Begay’s car flashed. Mr. Briggs, who was 6’ and weighed 280 pounds, emerged

from his car, and, while about five feet from Mr. Blueeyes, reached to shake his

hand. Before the two shook hands, Mr. Briggs was struck. Mr. Begay, who was

reclined in the passenger seat, heard noises akin to wrestling and the sound of

bones cracking. Mr. Begay pushed the car horn until Mr. Blueeyes commanded

him to stop.

      Mr. Begay, drunk and disoriented, soon contacted the police. An FBI agent

who examined the crime scene found Mr. Briggs’ body face down on the asphalt.




                                         -4-
He found no weapon near the body. Blood was spattered on the hood and driver’s

side of Mr. Begay’s car.

      Mr. Jones, after receiving his Miranda warnings, admitted to striking Mr.

Briggs with a baseball bat. At trial, he gave the following account of the assault

on Mr. Briggs: He had interpreted Ms. Charley’s telephone call as a warning, and

was suspicious of Mr. Briggs’ intentions. Mr. Benally had warned him earlier

about Mr. Briggs and said that Mr. Briggs was carrying a pistol in his back

pocket. See Rec. vol. V, at 549. When Mr. Jones went to meet Mr. Briggs in the

parking lot, he was concerned because Mr. Begay’s vehicle was parked in

darkened section of the lot. Mr. Yazzie, who was partially blind, got out and

proceeded toward Mr. Charley’s vehicle. Mr. Jones decided to join him and he

grabbed what he thought was his flashlight from the bed of his truck. He

approached from behind Mr. Begay’s car, circling behind Mr. Briggs. Mr. Jones

spotted a black object in Mr. Briggs’ back pocket, which he thought was a

firearm. Mr. Jones heard Mr. Briggs curse and heard a skirmish begin between

Mssrs. Briggs and Yazzie. When Mr. Briggs appeared to reach for the firearm,

Mr. Jones felt compelled to disable Mr. Briggs. He proceeded to strike him

multiple times with the bat, inflicting wounds to the head and back.

      Mr. Yazzie also testified at trial. He said that, although he did not recall

doing so, he guessed that he slashed Mr. Briggs three times.


                                         -5-
      Mssrs. Jones and Yazzie departed the scene and drove toward Arizona. Mr.

Yazzie threw the knife out the window as they drove; the bat was never

recovered.

      A grand jury indicted Mssrs. Jones and Yazzie for second degree murder

and aiding and abetting second degree murder on an Indian Reservation, in

violation of 18 U.S.C. §§ 1153, 1111, and 2 and a jury convicted both defendants.

After we vacated those convictions (because an involuntary manslaughter

instruction should have been given), Mr. Yazzie entered a plea agreement and Mr.

Jones proceeded to trial. A jury again found him guilty of second degree murder.

The court sentenced him to 168 months’ imprisonment and five years supervised

release and ordered him to pay restitution of $2,441.00.

             .

                                 II. DISCUSSION

A. Sufficiency of the Evidence

      We review de novo both the sufficiency of the evidence and the denial of

the motion for judgment of acquittal. United States v. Magleby, 

,

1311 (10th Cir. 2001). In reviewing the sufficiency of the evidence claim, we

“ask only whether taking the evidence–both direct and circumstantial, together

with the reasonable inferences to be drawn therefrom–in the light most favorable

to the government, a reasonable jury could find [the defendant] guilty beyond a


                                        -6-
reasonable doubt.” 

(internal quotation marks omitted). “We must

not weigh conflicting evidence or consider the credibility of the witnesses, but

simply determine whether the evidence, if believed, would establish each element

of the crime.” United States v. Vallo, 

, 1247 (10th Cir.) (internal

quotation marks omitted), cert. denied, 

(2001).

      Section 1111(a) defines second degree murder as “the unlawful killing of a

human being with malice aforethought.” 18 U.S.C. § 1111(a). To establish

malice aforethought, the government must present proof of: “(1) intent–to–kill

without the added ingredients of premeditation and deliberation; (2) intent–to–do–

serious–bodily–injury; (3) depraved–heart; or (4) [killing during the] commission

of certain felonies.” 

(internal quotation marks omitted).

The existence of a “depraved heart” may be established “by evidence of conduct

which is reckless and wanton, and a gross deviation from a reasonable standard of

care, of such a nature that a jury is warranted in inferring that defendant was

aware of a serious risk of death or serious bodily harm.” 

and citations omitted).

      Mr. Jones challenges only the evidence presented on the elements of the

unlawfulness of the killing and malice aforethought. He notes that the following

evidence undermines these elements: (1) Mr. Yazzie thought the flashing of

headlights was signaling others in the parking lot; (2) Mr. Jones believed Mr.


                                         -7-
Briggs was armed; (3) Mr. Begay was parked in the darkest part of the parking

lot; (4) Mr. Jones worried as to why Mr. Briggs was interested in meeting him and

his friends, members of a rival biker group; (5) upon seeing Mr. Briggs waiting to

meet Mr. Yazzie, his partially blind friend, Mr. Jones worried for Mr. Yazzie’s

safety; (6) Mr. Jones intended to grab his large flashlight from the truck bed, but

grabbed an aluminum bat instead; (7) Mr. Jones used the bat only in his own self-

defense and in the defense of others and reacted in the heat of passion.

      We are not persuaded by Mr. Jones’ arguments. As the government notes,

it presented the following evidence to support Mr. Jones’ conviction: (1) upon

receiving the phone call from Brenda Charley, Mr. Jones proceeded to the Zia

Bar, Mr. Blueeyes’ trailer, and the Seven-Eleven parking lot in an effort to locate

Mr. Briggs; (2) Mr. Benally testified he never told Mr. Jones that Mr. Briggs had

a weapon; (3) Mr. Jones carried an aluminum bat while approaching Mr. Briggs;

(4) Mr. Jones repeatedly inflicted severe blows upon Mr. Briggs’ head, back, and

right ankle area with the bat; (5) the cause of death was grievous and massive

head injuries produced by a blunt instrument. We conclude that this evidence is

sufficient for a rational jury, drawing reasonable inferences from basic facts to

ultimate facts, to have found Mr. Jones guilty of the unlawful killing of Mr.

Briggs with malice aforethought by engaging in conduct that was “reckless and

wanton, and a gross deviation from a reasonable standard of care.” Vallo, 238


                                         -8-
F.3d at 1247 (explaining evidence necessary to support a finding that the

defendant acted with a “depraved heart”).

      B. Prosecutor’s Remarks

      Next, Mr. Jones contends that several of the prosecutor’s statements during

closing argument went outside the record and made illegitimate insinuations about

Mr. Jones’ character and unfairly prejudiced him First, the prosecutor

commented that when Mr. Jones and others approached Mr. Briggs, it was “sort of

like wolves around a wounded calf.” Rec. vol. VI, at 761. Second, the prosecutor

also suggested that Mr. Jones had kicked Mr. Briggs in the groin “in the last

degrading moment.” 

Finally, the prosecution liberally incorporated

Mr. Jones’ statement that he was overcome by adrenalin, an “extra source of

power where [he] had no control over [his] actions,” 

at 566, and

remarked that Mr. Jones must have been overcome by “one heck of a rush” from

his “crushing of flesh and bones.” 

at 802. Mr. Jones did not object to

the “sort of like wolves” comment but did object to the latter two comments.

Both objections were overruled.

      Prosecutors may not obtain jury verdicts by making statements that are

seriously misleading or that otherwise prevent the jury from deliberating

rationally about the defendant’s guilt. See Donnelly v. DeChristoforo, 

, 643 (1974) (considering whether the prosecutors’ comments “so infected the


                                        -9-
trial with unfairness as to make the resulting conviction a denial of due process”);

Darden v. Wainwright, 

, 181 (1986) (noting “is not enough that the

prosecutors’ remarks were undesirable or even universally condemned”). Absent

an objection, we review a prosecutor’s remarks during closing argument for plain

error and will reverse “only to correct particularly egregious errors. . . .” United

States v. Hooks, 

, 1532 (10th Cir. 1986) (internal quotation marks

omitted). When the defendant has objected–but has not moved for a mistrial–we

consider whether the prosecutor’s alleged misconduct is harmless. United States

v. Meienberg, 

, 1180 (10th Cir. 2001) (“[T]he prosecutor’s

improper statement to the jury is harmless unless there is reason to believe that it

influenced the jury’s verdict.”). “In assessing whether the misconduct had such

an impact, we consider the trial as a whole, including the curative acts of the

district court, the extent of the misconduct, and the role of the misconduct within

the case . . . . To warrant reversal, the misconduct must have been flagrant

enough to influence the jury to convict on grounds other than the evidence

presented.” 

marks omitted).

      The prosecutor’s statement that Mssrs. Jones and Yazzie acted like “wolves

around a wounded calf,” Rec. vol. VI, at 761,was possibly improper, as it sought

to invoke an emotional reaction from the jurors. However, we hold it was not

plain error because it clearly did not so infect the trial so as to deprive Mr. Jones


                                         -10-
of a fair trial. The Supreme Court has condemned similar references, but has not

held them to be a violation of due process. See 

(holding that prosecutor’s calling defendant, an “animal” who should be on a

“leash” not to be in violation of due process). There is no indication that the

prosecutor’s comment, although objectionable, interfered with the jury’s

deliberations concerning Mr. Jones’ guilt.

      Similarly, the prosecutor’s suggestion that Mr. Jones, not Mr. Yazzie,

kicked the victim in the groin was improper. Mr. Yazzie testified that he kicked

the victim towards the groin area. See Rec. vol. VI, at 650. The prosecution

suggested that because Mr. Yazzie did not know whether or not he “connected”

with the kicking motion, Mr. Yazzie could not have delivered the injury. See id.;

800. At closing, the prosecutor stated “[y]ou know who kicked [Mr.

Briggs] in the groin . . . . [i]t was Raymond Jones.” 

      Nevertheless Mr. Jones does not contend that the trial court misinstructed

the jury regarding the weight to be placed upon the closing arguments. Moreover,

we hold that the evidence before the jury concerning Mr. Jones’ guilt was weighty

enough to support his conviction without consideration of the groin injury.

Accordingly, the suggestion that Mr. Jones inflicted the groin injury “did not

manipulate or misstate the evidence, nor did it implicate other specific rights of




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the accused” so as to deprive Mr. Jones of his right to due process. 

.

         Mr. Jones’ challenge to the prosecutor’s reference to Mr. Jones’ use of the

word “adrenalin” is similarly unpersuasive. The prosecutor suggested that Mr.

Jones must have enjoyed “one heck of a rush” while “crushing [Mr. Briggs’] flesh

and bones.” Rec. vol. VI, at 802. In our view, the objectionable content may

have been invited by Mr. Jones’ testimony that he was overwhelmed by adrenalin

and could not control his actions. Assuming without deciding that the

prosecutor’s closing contained unprofessional and inappropriate references, Mr.

Jones cannot show prejudice in the face of the overwhelming evidence of his

guilt.

         C. Admission of evidence

         Mr. Jones contends that the district court erred when it admitted into

evidence a photograph of the victim and the plea bargain of his former co-

defendant, Mr. Yazzie. Mr. Jones objected only to the admission of the

photograph. “We review the district court’s rulings on the admission of evidence

for abuse of discretion, if an objection is timely made, and otherwise for plain

error. 

.




                                          -12-
      1. Photograph of Victim

      The trial court admitted into evidence a photograph of the victim with his

mother, taken approximately five years before his death. In support of its

admission, the prosecution contended that Mr. Jones placed the appearance of the

victim into dispute, through testimony that suggested Mr. Briggs was “scary.”

Rec. vol. IV, at 246 (testim. of Brenda Charley); vol. V, at 538 (testim. of Mr.

Jones). Mr. Jones objected to the photograph’s admission and stipulated to the

identity of the victim.

      We note that “[t]he trial judge’s exercise of discretion in balancing the

prejudicial effect and probative value of photographic evidence of this type is

rarely disturbed.” United States v. Joe, 

, 1499 (10th Cir. 1993)

(internal quotation marks omitted). We acknowledge that in Joe the defense did

not stipulate to the identification of the victim, and that here the photograph is not

probative of the victim’s identity. However, we agree with the government that

the photograph was relevant to the disputed appearance of the victim. Moreover,

the photographs were not unfairly prejudicial. Cf. United States v. Naranjo, 

, 1468 (10th Cir. 1983) (admission of photograph depicting entry wound

at the right upper lip of victim, “and a great deal of blood on the pillow,

bedsheets, and the victim’s face” was not “unduly nor designedly inflammatory”

and the jury was not improperly prejudiced by it). However, we must admonish


                                         -13-
the government, as we did with reference to its choice of closing words, to select

its exhibits carefully. The proffering of a five-year old photograph of the victim

seated with his mother, as opposed to a more recent (if available) or at least a

cropped photograph depicting only the victim, needlessly pushes the prosecutorial

envelope, and could, if coupled with errors not present here, jeopardize a

conviction.

      2. Plea agreement

      Mr. Jones also contests the admission of Mr. Yazzie’s plea agreement as

unfairly prejudicial and as plain error. He contends that the government used the

plea agreement as substantive evidence in its closing argument. Mr. Jones did not

object to any of the testimony regarding Mr. Yazzie’s guilty plea of which he now

complains. Nor did he request an instruction regarding the significance of the

plea agreement. Thus, we review for plain error. See Fed. R. Crim. P. 52(b);

United States v. Osuna, 

, 1292 n. 2 (10th Cir. 1999).

      Under the plain-error rubric, this court may correct an error not raised at

trial only if it is (1) plain, and (2) affects the defendant’s substantial rights. See

Johnson v. United States, 

, 1549 (1997). If those conditions

precedent are met, this court may exercise its discretion to correct the error only if

the error “seriously affect[s] the fairness, integrity, or public reputation of judicial

proceedings.” 

marks omitted).


                                          -14-
      Clearly, Mr. Yazzie’s “‘guilty plea may not be used as substantive evidence

of a defendant’s guilt.’” United States v. Whitney, 

, 1304 (10th

Cir. 2000) (quoting United States v. Baez, 

, 455 (10th Cir. 1983)).

“However, either the government or the defense may elicit testimony from a

co-defendant regarding his guilty plea for purposes of aiding the jury in its

assessment of the co-defendant’s credibility as a witness.” 

government may use co-defendant’s guilty plea “to establish ‘the witness’s claim

to firsthand knowledge based on his or her admitted participation.’” 

States v. Davis, 

, 1456 (10th Cir. 1985)).

      Here, as Mr. Yazzie testified to the facts related to the killing that were

contained in the plea agreement, the government and Mr. Jones used evidence of

Mr. Yazzie’s plea to inform the jury of the circumstances under which he was

testifying and to aid him to recount his knowledge of the offense. This was a

proper use of a Mr. Yazzie’s guilty plea. See 

no plain error here.

      D. Batson claim

      For the first time on appeal, Mr. Jones alleges that the prosecution

improperly struck two Native American venirepersons, in violation of Batson v.

Kentucky, 

(1986). Because Mr. Jones failed to raise this objection at

any point below, we review for plain error only. See Hidalgo v. Fagen, Inc. 

, 1019-20 (10th Cir. 2000) (reviewing Batson challenge raised for the


                                         -15-
first time on appeal for plain error); cf. Morning v. Zapata Protein (USA), Inc.,

, 216 (4th Cir. 1997) (noting that Batson challenge must be exercised

in a timely manner, and failure to raise a Batson challenge prior to the venire

being excused constitutes a waiver of the challenge).

      “Under our Batson jurisprudence, once the opponent of a peremptory

challenge has made out a prima facie case of racial discrimination (step one),

the burden of production shifts to the proponent of the strike to come forward

with a race-neutral explanation (step two). If a race-neutral explanation is

tendered, the trial court must then decide (step three) whether the opponent of the

strike has proved purposeful racial discrimination.” Heno v. Sprint/United

Management Co., 

, 854 (10th Cir. 2000).

      However, without a timely challenge, Mr. Jones cannot establish a prima

facie case of racial discrimination under Batson. See 

(finding no plain error where claim not raised below). There is no evidence in the

record to support his assertion that the persons removed via the government’s

peremptory challenge were Native American. Additionally, Mr. Jones has failed

to show that the government’s use of peremptory challenges in removing the two

prospective jurors was motivated by anything other than a racially neutral reason.

Mr. Jones does not direct us to any facts in the record from which we can infer a

discriminatory purpose on the part of the prosecution. See United States. v.


                                         -16-
Bedonie, 

, 795 (10th Cir. 1990) (concluding that the defendant failed

to show that the persons removed were members of his racial group or that the

government’s challenges were racially motivated). A remand to the district court

at this juncture would be impractical and improper. See United States v. Allen,

, 856 (E.D. Va. 1987) (when Batson claim was raised when jury

was not yet impaneled, the trial was about to begin, and all of the unselected

veniremen had been released, the court noted: “In this and most other

jurisdictions, jury costs have risen, and it is impractical to have a venire of 36 to

50 persons called and paid only to have them excused, and a new venire called,

just because the defense counsel has not made a timely objection.”), aff'd sub

nom. United States v. Harrell, 

(4th Cir. 1988).

      E. Cumulative Error

      Finally, Mr. Jones maintains that even if these errors do not rise to the level

of reversible error, in the aggregate, they amount to cumulative error. However,

we hold that we need not engage in a cumulative error analysis as requested by

Mr. Jones. When reviewing a case for cumulative error, only actual errors are

considered in determining whether the defendant’s right to a fair trial was

violated. See United States v. Rivera , 

, 1470-71 (10th Cir. 1990)

(en banc) (“[A] cumulative error analysis should evaluate only the effect of

matters determined to be error, not the cumulative effect of non-errors.”).


                                          -17-
Because we have found but one potential error, which we deemed harmless,

resulting from the alleged prosecutorial misconduct, the cumulative error doctrine

does not apply.

                               III. CONCLUSION

      For the reasons stated above we AFFIRM Mr. Jones’ conviction.

                                              Entered for the Court



                                              Robert H. Henry
                                              Circuit Judge




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