United States v. Leon Donald Farlee

Filing

OPINION FILED - THE COURT: Steven M. Colloton, Bobby E. Shepherd and Jane Kelly AUTHORING JUDGE:Bobby E. Shepherd (PUBLISHED), CONCUR BY: Steven M. Colloton [4173121] [13-2315]

United States Court of Appeals
For the Eighth Circuit
___________________________
No. 13-2315
___________________________
United States of America
lllllllllllllllllllll Plaintiff - Appellee
v.
Leon Donald Farlee
lllllllllllllllllllll Defendant - Appellant
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Appeal from United States District Court
for the District of South Dakota - Pierre
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Submitted: March 13, 2014
Filed: July 9, 2014
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Before COLLOTON, SHEPHERD, and KELLY, Circuit Judges.
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SHEPHERD, Circuit Judge.
A jury convicted Leon Donald Farlee of assault with a dangerous weapon in
violation of 18 U.S.C. § 113(a)(3) and assault resulting in serious bodily injury in
violation of 18 U.S.C. § 113(a)(6). The district court1 sentenced Farlee to 60 months
1

The Honorable Roberto Lange, United States District Judge for the District of
South Dakota.

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imprisonment and ordered him to pay restitution in the amount of $127,716.74. Farlee
appeals, claiming the court committed numerous trial errors and requesting the verdict
be set aside and his conviction reversed or, in the alternative, that his sentence be
vacated and the case remanded for a new trial. We affirm.
I.
“We state the facts in the light most favorable to the jury’s verdict.” United
States v. Washington, 318 F.3d 845, 850 (8th Cir. 2003). Farlee was in a relationship
with Leslie Oakie. Late on the night of March 31, 2012, the couple returned to
Oakie’s trailer on the Cheyenne River Sioux Reservation after a night of drinking.
The door to the trailer was locked, so Oakie climbed through a window while Farlee
remained at the front door. She was surprised to find her friend Merton Eaton inside
the trailer. Eaton had previously loaned Oakie his car and had gone inside the trailer
to retrieve his keys. Oakie attempted to get Eaton to leave through the back of the
trailer, but he did not do so. Farlee, belligerent and intoxicated, punched through a
window on the front door and let himself inside, sustaining a deep cut in his arm,
causing significant bleeding. Inside the trailer, Farlee assaulted Eaton near the back
window, kicking him in the head with his boots, and caused Eaton severe injury,
including lacerations on his left forearm and right arm, facial trauma, multiple
lacerations on the right side of his face, and traumatic brain injury.
II.
Farlee contends the trial court committed error by: (1) denying his motion for
judgment of acquittal, (2) inadequately instructing the jury, (3) failing to suppress
evidence seized with a deficient search warrant, (4) failing to grant a continuance,
(5) permitting irrelevant and cumulative testimony, and (6) permitting the Government
to use leading questions during direct examination. We address each claim in turn.

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A. Motion for Judgment of Acquittal
Farlee argues the district court erred by denying his motion for judgment of
acquittal because (1) there was insufficient evidence he used a dangerous weapon, and
(2) the evidence showed he was acting in self defense. In considering a district court’s
denial of a defendant’s motion for judgment of acquittal, we view “the evidence in the
light most favorable to the verdict and accept as established all reasonable inferences
supporting the verdict.” United States v. Barrios-Perez, 317 F.3d 777, 779 (8th Cir.
2003) (internal quotation marks omitted). We will uphold the convictions unless “no
reasonable jury could have found the defendant guilty beyond a reasonable doubt.”
Id. (quotations omitted).
i. Use of a Dangerous Weapon
Farlee contends there was insufficient evidence to prove the boots he was
wearing constituted a dangerous weapon because they were “floppy, old, and could
not have caused any of the injuries that Eaton suffered.” He also claims, due to lack
of blood on the boots, there was insufficient evidence indicating the boots had been
in contact with Eaton. To obtain a conviction under 18 U.S.C. § 113(a)(3), the
Government must prove the defendant used a dangerous weapon, “an object capable
of inflicting bodily injury,” during the course of the assault. United States v. Steele,
550 F.3d 693, 699 (8th Cir. 2008); United States v. LeCompte, 108 F.3d 948, 952-53
(8th Cir. 1997). Whether an object “constitutes a dangerous weapon in a particular
case is a question of fact for the jury.” United States v. Phelps, 168 F.3d 1048, 1055
(8th Cir. 1999). We have upheld convictions for assault with a dangerous weapon
involving kicking a victim with shod feet, including tennis shoes. See, e.g., Steele,
550 F.3d at 699.
The jury heard eyewitness testimony from Oakie that Farlee kicked Eaton in the
head repeatedly while wearing his boots. Eaton’s treating Emergency Room
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physician testified that Eaton’s head was swollen and cut and had sustained “many
blunt-force impacts.” Moreover, Farlee’s assertion on appeal that the boots did not
have Eaton’s blood on them is contrary to the evidence presented from the
Government’s DNA expert at trial, which supported the finding that Eaton’s blood
was found on the toe area of both of Farlee’s boots. Thus, the evidence was sufficient
for a jury to conclude Farlee used his boots to assault Eaton and his boots were
capable of causing serious bodily injury. Accordingly, we agree with the district court
that the evidence supported Farlee’s conviction for assault with a dangerous weapon.
ii. Self Defense
Next, Farlee argues because the evidence supported an absolute defense—self
defense—the court erred in not granting his motion for acquittal. “‘If a person
reasonably believes that force is necessary to protect himself or another person from
what he reasonably believes to be unlawful physical harm about to be inflicted by
another and uses such force, then he acted in self defense or defense of another
person.’” United States v. Milk, 447 F.3d 593, 598 (8th Cir. 2006) (quoting district
court jury instructions); see also United States v. Tunley, 664 F.3d 1260, 1262 n.3 (8th
Cir. 2012) (noting that, because self-defense is not codified by federal statute, courts
generally rely on the common-law definition of self defense). “Although a federal
defendant bears the burden of production on the issue of self-defense, once that
burden is met, the government must prove beyond a reasonable doubt that the
defendant did not act in self-defense.” Milk, 447 F.3d at 598.
Farlee’s theory at trial was Eaton was waiting in Oakie’s trailer, and when
Farlee came inside Eaton attacked him. Thus, Farlee acted in self defense. However,
having reviewed the record, we find the Government presented substantial evidence
negating this self-defense argument, and the jury reasonably could have credited this
evidence. The jury has the ultimate task of determining the facts and assessing the
credibility of the witnesses. United States v. Gaona-Lopez, 408 F.3d 500, 505-06 (8th
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Cir. 2005). Oakie testified Farlee was drunk and had been acting in a jealous manner
that night. She also testified that, once she saw Eaton inside the trailer, she did not
unlock the front door for Farlee because she “thought [Farlee] was going to come in
and beat [Eaton] up.” She then testified that, after Farlee broke the window to the
front door and let himself inside, he yelled at Eaton and was angry and upset. The
location of blood inside the trailer supports Oakie’s testimony that the encounter
occurred near the back of the trailer rather than near the front door through which
Farlee entered, contrary to Farlee’s assertion that Eaton attacked him as he entered.
Finally, Farlee’s treating Emergency Room physician testified Farlee was belligerent
and “appeared to be quite intoxicated.” Although Farlee presented evidence,
including his own testimony, in support of his self-defense theory, a jury could
reasonably have rejected Farlee’s testimony and concluded beyond a reasonable
doubt, based on the other evidence, he did not act in self defense.
B. Jury Instructions
Farlee next contends the trial court abused its discretion in its instructions to the
jury by (1) failing to instruct on defense of property, (2) failing to instruct on the
lesser-included offense of assault by striking, beating, and wounding, and (3)
erroneously instructing on the law of self defense.
i. Defense of Property Jury Instruction
Farlee argues the district court erred in failing to give his proposed jury
instructions on defense of property. “We generally review a district court’s refusal
to provide a requested instruction for abuse of discretion.” United States v. Davis,
237 F.3d 942, 945 (8th Cir. 2001). “[A] party is entitled to an instruction on its theory
of the case so long as it is legally correct and there is factual evidence to support it.”
Thornton v. First State Bank of Joplin, 4 F.3d 650, 652 (8th Cir. 1993); see also
Boesing v. Spiess, 540 F.3d 886, 890 (8th Cir. 2008). The instruction Farlee
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requested was derived from South Dakota law, which, in certain circumstances,
permits persons to use force or violence to protect property. Farlee contends the
Assimilative Crimes Act, 18 U.S.C. § 13, requires that the federal court borrow state
law jury instructions where crimes allegedly occur on federal enclaves such as Indian
reservations. See Lewis v. United States, 523 U.S. 155, 160 (1998). However, it is
unnecessary for us to determine whether a defense of property instruction is
authorized because such an instruction is not warranted by the evidence.
South Dakota’s defense of property statute allows any person to use force or
violence against another
when the person reasonably believes that such conduct is necessary to
prevent or terminate the other person’s trespass on or other criminal
interference with real property or personal property lawfully in his or her
possession or in the possession of another who is a member of his or her
immediate family or household or of a person whose property he or she
has a legal right to protect.
S.D. Codified Laws § 22-18-4. Farlee was in Oakie’s trailer when the altercation
occurred. The trailer was not in Farlee’s possession, nor were Oakie and Farlee in the
same family or household to justify his defense of property. Therefore, because the
facts of this case do not support the defense of property instruction under South
Dakota law, the district court did not abuse its discretion in refusing to give the
instruction.
ii. Lesser-Included Offense Instruction
Farlee next argues the district court abused its discretion in failing to instruct
the jury on the lesser-included offense of assault by striking, beating, and wounding.
He contends that, because the evidence presented at trial regarding Eaton’s injuries
could lead a jury to believe the injuries occurred from Eaton falling and striking his
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head on the floor, rather than from Farlee’s fists and boots, the jury could have found
Farlee guilty of the lesser offense.
“[I]t is beyond dispute that a defendant is not entitled to a lesser-included
offense instruction unless the evidence adduced at the trial provides a rational basis
upon which the jury could find him not guilty of the greater but guilty of the lesser
offense.” United States v. Eagle Elk, 658 F.2d 644, 648 (8th Cir. 1981); see also
Keeble v. United States, 412 U.S. 205, 208 (1973). In our circuit, assault by striking,
beating, and wounding is a lesser included offense of assault resulting in serious
bodily injury. See United States v. Young, 875 F.2d 1357, 1359 (8th Cir. 1989).
The distinguishing factor between the two offenses is the degree of injury
resulting from the assault. Assault resulting in serious bodily injury requires, as an
element of the offense, that serious bodily injury result. However, assault by striking,
beating, and wounding requires no “particular degree of severity in the injury.”
United States v. Knife, 592 F.2d 472, 482 (8th Cir. 1979). Farlee admitted there was
an assault and presented no evidence disputing the Government’s evidence of Eaton’s
resulting serious injury. Because proof of the element differentiating the two crimes
was not in dispute, the jury could not have rationally convicted Farlee on the lesser,
but not the greater, offense, thus, the trial court did not abuse its discretion in refusing
to give the instruction. See United States v. Felix, 996 F.2d 203, 207 (8th Cir. 1993).
iii. Self-Defense Instruction
Farlee asserts the district court’s final error in its jury instructions was its
refusal to give his proposed instruction on self defense, which included instructions
that the defendant is not required to retreat and that the aggressor need not be armed
for the defendant to assert self defense as an affirmative defense. The district court
gave the Eighth Circuit Model Jury Instruction on the issue of self defense:

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If a person reasonably believes that force is necessary to protect himself
or another person from what he reasonably believes to be unlawful
physical harm about to be inflicted by another and uses such force, then
he acted in self defense or defense of another. However, self defense
which involves using force likely to cause death or great bodily harm is
justified only if the person reasonably believes that such force is
necessary to protect himself or a third person from what he reasonably
believes to be a substantial risk of death or great bodily harm.
Specifically, and in relevant part, Farlee requested that the self-defense instruction
also include the following:
Although a defendant asserting self defense is not required to retreat
before resorting to force, the availability of retreat may be a factor for the
jury to consider in evaluating whether the force used was reasonable. An
aggressor need not have been armed in order for the defendant to raise
self defense.
A defendant has the right to have the jury instructed on his theory of the case
when there is evidence to support it and a proper request is made. See United States
v. Manning, 618 F.2d 45, 47-48 (8th Cir. 1980). However, “a defendant is not entitled
to a particularly worded instruction where the instructions given by the trial judge
adequately and correctly cover the substance of the requested instruction.” Id. at 48
(citations omitted). A proper request is one which is timely, is supported by the
evidence, and sets forth a correct statement of the law. United States v. Brake, 596
F.2d 337, 339 (8th Cir. 1979).
We find no error in the district court’s instruction to the jury on the issue of self
defense. “One is entitled to stand his ground and use such force as [is] reasonably
necessary under the circumstances to save his life or protect himself from serious
bodily harm,” if he reasonably believes such danger is imminent, United States v.
Deon, 656 F.2d 354, 356 (8th Cir. 1981) (alteration in original) (internal quotation

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marks omitted), and using force likely to cause death or great bodily harm to the other
person is justified if the person acting in self defense reasonably believes that force
is necessary to protect himself from death or great bodily harm, United States v.
Walker, 817 F.2d 461, 463 (8th Cir. 1987) (holding a self-defense instruction using
this language adequately stated the law). This principle was adequately set forth in
instructions given by the district court. The jury could have determined, according to
the given instructions, that Farlee’s actions were reasonable and justified if the jury
found that Farlee was being attacked by Eaton and that Farlee reasonably believed that
he faced a substantial risk of death or great bodily harm. However, the jury was also
permitted to decline to credit Farlee’s evidence with respect to self defense.
Moreover, the additional requested instruction was not particularly relevant to
the issues nor did it constitute a substantial portion of Farlee’s defense. It is
unnecessary for a trial court to instruct a jury on every nuanced area of the defense
when the evidence and arguments do not bring those issues before the jury. See id.
Because there was no evidence or argument regarding the requested additional
instruction, giving the instruction would not have had a substantial impact on the
jury’s verdict. See United States v. Krapp, 815 F.2d 1183, 1188 (8th Cir. 1987).
Instead, the self-defense instructions given were sufficient to advise the jury on the
law of self-defense. See Walker, 817 F.2d at 463.
C. Motion to Suppress
Farlee next contends the district court erred in denying his motion to suppress
his boots and a saliva sample taken pursuant to invalid search warrants. The
Government used Farlee’s saliva sample to match his DNA to blood found at the
trailer and on his boots. The Government used his boots for the purpose of
demonstrating that there was some of Eaton’s blood present on them. The district
court held that, while the affidavits supporting the warrants were insufficient to
establish probable cause, the evidence could be admitted under the Leon good faith
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exception to the warrant requirement. Farlee argues the Leon good faith exception
does not apply because (1) the Government did not establish the objective
reasonableness of the officers’ good faith reliance on the search warrants, and (2) the
lay magistrate abandoned her judicial role by signing the warrants.2
We review a district court’s determination of probable cause and the application
of the Leon good faith exception de novo. United States v. Perry, 531 F.3d 662, 665
(8th Cir. 2008). Generally, a warrant supported by a probable cause affidavit is
required for a search. Without a valid warrant, or a recognized exception to the
warrant requirement, a search violates the Fourth Amendment, Missouri v. McNeely,
133 S.Ct. 1552, 1558 (2013), and the evidence seized pursuant to the search should
be excluded from a trial, United States v. Calandra, 414 U.S. 338, 347 (1974). In
Leon, the Supreme Court recognized “the exclusionary rule is designed to deter police
misconduct rather than to punish the errors of judges and magistrates.” United States
v. Leon, 468 U.S. 897, 916 (1984). Accordingly, under the Leon good faith
exception, even if the affidavit does not set forth sufficient probable cause, evidence
obtained pursuant to the search warrant subsequently invalidated will not be excluded
if: “(1) the executing officers relied in good faith on a search warrant signed by a
neutral and detached magistrate, and (2) the officers’ reliance on the warrant was
objectively reasonable.” United States v. Jackson, 67 F.3d 1359, 1365 (8th Cir. 1995)
(citing Leon, 468 U.S. at 922-23).
Farlee first argues the Government did not establish the officers acted in good
faith reliance on the search warrants because the affidavits were facially deficient. An

2

In his reply brief, Farlee argues the person signing the warrants was not a
neutral and detached magistrate, but a lay person acting as a magistrate, and, thus, the
warrants did not comply with Federal Rule of Criminal Procedure 41. However, “we
generally do not address issues and arguments asserted for the first time in a reply
brief,” Giove v. Stanko, 49 F.3d 1338, 1344 n.4 (8th Cir. 1995), and see no reason
here to depart from the general rule.
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officer may not rely entirely on the magistrate’s finding of probable cause when the
application for the warrant so lacks probable cause that the officer cannot have a
reasonable belief in its existence. Malley v. Briggs, 475 U.S. 335, 344-45 (1986).
When a magistrate relies solely on an affidavit to issue the warrant, “‘only that
information which is found within the four corners of the affidavit may be considered
in determining the existence of probable cause.’” United States v. Etheridge, 165 F.3d
655, 656 (8th Cir. 1999) (quoting United States v. Gladney, 48 F.3d 309, 312 (8th Cir.
1995)). However, when assessing the officer’s good faith reliance on a search warrant
under the Leon good faith exception, we can look outside of the four corners of the
affidavit and consider the totality of the circumstances, including what the officer
knew but did not include in the affidavit. United States v. Martin, 833 F.2d 752, 756
(8th Cir. 1987) (citing Anderson v. Creighton, 483 U.S. 635, 641 (1987)).
Even if the affidavits do not set forth probable cause, we find the good faith
exception to the warrant requirement would apply based on a totality of the
circumstances. Although Detective Larry LeBeau provided the supporting affidavits
for the search warrants rather than the lead investigator Detective Russell Leaf,
Detective Leaf fully briefed Detective LeBeau on the details of the investigation. At
that point, according to Leaf’s testimony at the suppression hearing, he had already
spoken with Oakie and had determined that Farlee was a suspect. He had also been
to the trailer and seen what he believed to be blood outside on the door. Based on the
totality of the circumstances, we conclude that the officers possessed information
giving them reason to believe in good faith that the search warrants were valid.
Farlee next contends the lay magistrate signing the warrants abandoned her
judicial role. The Leon good faith exception will not apply to admit evidence if the
magistrate who issued the warrants abandoned his or her neutral and detached role in
issuing it. Leon, 468 U.S. at 914. A warrant may be issued only by an official who
is “neutral and detached” and “capable of determining whether probable cause exists
for the requested arrest or search.” Shadwick v. City of Tampa, 407 U.S. 345, 350
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(1972). Other than a broad allegation that the “deficiencies in the affidavit here belie
any argument that it could be saved by the good faith exception,” Appellant’s Br. 36,
Farlee points to nothing in the record that demonstrates the magistrate abandoned her
neutral and detached role nor does he allege facts that would lead a reasonable person
to believe her role was abandoned in issuing the warrants. Having independently
reviewed the record, we determine that Farlee’s claim amounts to nothing more than
a vague and conclusory allegation and is without merit. See United States v.
Mathison, 157 F.3d 541, 548 (8th Cir. 1998).
Finally, even if the Leon good faith exception does not apply, and thus the
district court erred in allowing the boots and saliva sample into evidence, such error
was harmless. For a federal constitutional error to “be held harmless, the court must
be able to declare a belief that it was harmless beyond a reasonable doubt.” Chapman
v. California, 386 U.S. 18, 23-24 (1967). With respect to this issue we ask, absent the
unconstitutionally admitted evidence, “is it clear beyond a reasonable doubt that the
jury would have returned a verdict of guilty?” United States v. Hasting, 461 U.S. 499,
510-11 (1983); see also Burger v. Kemp, 483 U.S. 776, 782 n.5 (1987) (assuming that
the trial court’s charge to the jury was unconstitutional, any error was harmless
beyond a reasonable doubt because the evidence presented was “so dispositive” that
the jury would not have had to rely on any unconstitutional instruction given). Any
error here was harmless beyond a reasonable doubt in light of the overwhelming
evidence presented by the Government, independent of the boots and saliva,
supporting the jury’s verdict. Bud Lone Eagle, Oakie’s uncle who made the initial
call to the police, testified to what he saw the night of the attack, including the damage
to the entry door of the trailer and the scene inside, including Eaton laying on the
floor. The jury heard Oakie’s eyewitness testimony that Farlee forced his way into
the trailer and attacked Eaton, kicking him in the head with his boots. The testimony
of Eaton’s treating physician provided evidence of the severity of Eaton’s injuries,
including extreme swelling of his head, caused by multiple blunt-force impacts. The
Government also presented testimony that Farlee was behaving in a jealous manner
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that night and that he was “quite intoxicated” and “belligerent” when treated at the
emergency room after the attack. Under these circumstances, the evidence was
cumulative of other evidence before the jury, and the verdict was not affected by the
disputed evidence. Thus, we conclude beyond a reasonable doubt that the jury would
have returned a guilty verdict without the admission into evidence of the boots and
saliva sample. See United States v. Noske, 117 F.3d 1053, 1058 (8th Cir. 1997)
(“Even if the search violated [the defendant’s] Fourth Amendment rights . . .
admission of the [evidence] was harmless beyond a reasonable doubt.”).
For these reasons, we find there was no reversible error in the district court
allowing Farlee’s boots and saliva to be admitted into evidence.
D. Continuance
Farlee next argues the court abused its discretion in refusing to grant a
continuance based on the unavailability of one of his witnesses. At the conclusion of
Farlee’s case, his attorney informed the court that one of the defense witnesses was
not present and moved for a continuance. The absent witness was to testify about “his
opinion of Merton Eaton for assaultive behavior.” Trial Tr. 640. The court denied
Farlee’s motion. Farlee argues the denial was an abuse of the court’s discretion
because the testimony was material and favorable to the defendant, and it would give
significant weight to his self-defense argument.
In determining whether to grant a continuance, the trial judge must balance the
asserted need for the continuance against the hardship of the resulting delay, and
should also consider the complexity of the case, the diligence of the party requesting
a continuance, and the conduct of the opposing party. United States v.
Coronel-Quintana, 752 F.2d 1284, 1287-88 (8th Cir. 1985); United States v. Little,
567 F.2d 346, 348-49 (8th Cir. 1977). Because this balancing requires familiarity
with the parties and particular circumstances of the case, the trial court retains broad
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discretion to grant a continuance. Morris v. Slappy, 461 U.S. 1, 11 (1983). We
review only for abuse of that discretion, United States v. Reeves, 730 F.2d 1189, 1193
(8th Cir. 1984), and will reverse only if “the moving party was prejudiced by the
denial,” United States v. Hyles, 479 F.3d 958, 967 (8th Cir. 2007) (internal quotation
marks omitted).
While the district court observed that the witness’s testimony was likely
admissible, Farlee had ten months to prepare for the trial and to locate character
witnesses. Given the broad discretion afforded district courts when ruling on requests
for continuances, and because the testimony regarding the victim’s character was
unlikely to overcome the weight and substance of the Government’s evidence, we
hold the district court did not abuse its discretion in denying the continuance motion.
E. Testimony of Danette Serr
Farlee argues the trial court abused its discretion in allowing the testimony of
Danette Serr, the long-time girlfriend of Eaton’s son. Serr testified she saw Eaton
almost every day before the incident, and Eaton was “plumb fine.” Trial Tr. 465. She
also testified there were physical and behavioral changes in Eaton after the incident
as compared to before. Farlee argues this evidence was irrelevant, and thus should not
have been admitted under Federal Rule of Evidence 402. He argues further that, even
if it was relevant, the testimony should not have been admitted under Federal Rule of
Evidence 403 because it was cumulative and prejudicial.
“The trial court has broad discretion in determining the relevancy and
admissibility of evidence.” United States v. Jiminez, 487 F.3d 1140, 1145 (8th Cir.
2007) (internal quotation marks omitted). Only relevant evidence is admissible in a
trial. Fed. R. Evid. 402. Relevant evidence is evidence having any tendency to make
the existence of any fact that is of consequence to the determination of the action more
probable or less probable than it would be without the evidence. Fed. R. Evid. 401.
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“The threshold for relevance is quite minimal.” United States v. Holmes, 413 F.3d
770, 773 (8th Cir. 2005) (internal quotation marks omitted). Under Rule 403, relevant
evidence may be excluded “if its probative value is substantially outweighed by a
danger of . . . unfair prejudice, confusing the issues, misleading the jury, undue delay,
wasting time, or needlessly presenting cumulative evidence.” Fed. R. Evid. 403. We
reverse only if there is an abuse of the trial court’s discretion. United States v. Nelson,
988 F.2d 798, 805 (8th Cir. 1993).
The district court did not abuse its discretion in admitting this evidence. Serr’s
testimony helped the Government to establish Eaton suffered serious bodily injury,
an element of one of the crimes with which he was charged. Farlee would not
stipulate Eaton suffered serious bodily injury, and requested a lesser-included offense
instruction that did not require serious bodily injury. To demonstrate Eaton in fact
sustained serious bodily injuries, Serr testified to Eaton’s condition in the hospital,
and the changes in his condition after the assault as compared to before. Having
reviewed the record, we conclude the district court did not abuse its discretion in
determining this testimony was relevant and not so cumulative of other testimony or
so prejudicial such that it necessitated exclusion.
F. Leading Questions
Farlee finally argues the district court abused its discretion in permitting the
Government to use leading questions during its direct examination of Leslie Oakie,
providing the basis for a mistrial. We defer to the trial court in determining when
leading questions are necessary, and review for abuse of discretion. United States v.
Stelivan, 125 F.3d 603, 608 (8th Cir. 1997). While leading questions are generally not
permitted during direct examination, Federal Rule of Evidence 611(c) permits the
district court to allow leading questions when necessary to develop testimony. In this
case, the district court allowed the Government to ask leading questions, noting Oakie
was hesitant in responding and lengthy delays preceded the answers. Trial Tr. 194,
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557. We are satisfied the district court did not abuse its discretion in allowing the
Government to use leading questions in this examination. Having determined that
there was no error in the district court’s rulings under Rule 611, we reject Farlee’s
argument that the use of leading questions formed the basis for a mistrial.
III.
Accordingly, we affirm Farlee’s conviction.
COLLOTON, Circuit Judge, concurring in part and concurring in the judgment.
I join the opinion of the court except for the discussion of harmless error in
Part II.C, which resolves a close issue that is unnecessary to the decision.
_________________________

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