United States v. Clifford (640 F.2d 150, 1981)

RENNER, District Judge.

David Collins Clifford appeals from his convictions for assault with a dangerous weapon, in violation of 18 U.S.C. §§ 113(c), 1153 (1976), and assault resulting in serious bodily injury, in violation of 18 U.S.C. §§ 113(f), 1153. Appellant asserts three errors as grounds for reversal: The trial court’s refusal to admit proffered testimony of one Clifton Clifford; its failure to conduct adequate voir dire as to racial prejudice; and the failure to quash the venire. We affirm.

I.

The indictment was filed on December 12, 1979, charging Clifford with assault with a dangerous weapon with intent to do bodily harm by an Indian in Indian country (Count I), and with assault by an Indian in Indian country resulting in serious bodily injury (Count II). Jury trial commenced April 10, 1980, ultimately resulting in a verdict of guilty on both counts. On June 23, 1980, the district court sentenced defendant to forty months imprisonment on Count I and forty months imprisonment on Count II, the sentences to run concurrently to each other but consecutively to an unrelated county jail term defendant was then serving in Rushville, Nebraska. On June 23, 1980, Clifford filed his Notice of Appeal.

II.

This case arises out of an incident that occurred during the late evening hours of November 20,1979. Clifford was attending a party on the Pine Ridge Indian Reservation in South Dakota. During the evening, Dale M. Brewer joined the party. Subsequently, appellant and Brewer engaged in “wrestling around” or “strongarming.” Both men were armed, Clifford with a handgun and Brewer with a knife.

After Clifford and Brewer were first separated, Clifford struck Brewer on the side of the head with his gun. Brewer then approached Clifford and hit him several times. Clifford, in turn, pointed his gun at Brewer and fired, striking him in the left chest area.

III.

Appellant contends that the trial court erred in excluding from evidence the proffered testimony of his cousin, Clifton Clifford. This testimony was offered in support of the appellant’s position that the shooting was in self-defense. In particular, it was offered to explain why he was carrying a gun on the day of the shooting.

In an offer of proof, Clifton Clifford stated that he would testify: that as a tribal attorney he frequently represents people in tribal court charged with crimes involving assaults at parties; that sometimes weapons are involved; that homes or property are damaged or destroyed by firearms or other weapons; that many homes on the reservation have gunshot holes in them; that “some nights it’s like Vietnam where I live [in Pine Ridge]”; that people at parties shoot holes in the walls and others get shot accidentally; that his son-in-law