People of Territory of Guam v. Quichocho
| Decision Date | 18 June 1992 |
| Docket Number | No. 91-10333,91-10333 |
| Citation | 967 F.2d 589 |
| Parties | NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel. THE PEOPLE OF THE TERRITORY OF GUAM, Plaintiff-Appellee, v. Richard Reyes QUICHOCHO, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Before CYNTHIA HOLCOMB HALL, BRUNETTI and LEAVY, Circuit Judges.
Defendant Richard Quichocho appeals his jury conviction for aggravated murder, attempted murder, use of a deadly weapon in the commission of a felony, and theft by receiving stolen property, in violation of 9 GCA §§ 16.30, 13.10, 80.37 and 43.50, respectively. The Superior Court of Guam had original jurisdiction under section 22A of the Organic Act of Guam, 48 U.S.C. § 1424-1. The District Court of Guam, Appellate Division, had appellate jurisdiction pursuant to 48 U.S.C. § 1424-3(a). This court has jurisdiction pursuant to 28 U.S.C. § 1291 and 48 U.S.C. § 1424-3(c). We affirm Quichocho's convictions on all counts.
Quichocho first argues that the trial court erred in instructing the jury on manslaughter. Quichocho's defense at trial was that he committed the homicide for which he was charged while acting under an extreme mental or emotional disturbance. Under Guam law, murder committed under an extreme mental or emotional disturbance will be mitigated to manslaughter. See 9 GCA § 16.50(a). Quichocho argues that by instructing the jury to follow verdict forms that required it to reach a verdict on murder before moving on to manslaughter, and by refusing to instruct the jury that murder and manslaughter should be considered contemporaneously, the judge prevented the jury from effectively considering his manslaughter defense.
The problem with Quichocho's argument is that he was convicted of aggravated murder, and, under Guam law, the existence of an "extreme mental and emotional disturbance" is not a defense to aggravated murder. 9 GCA § 16.50(a) states:
Criminal homicide constitutes manslaughter when:
(1) it is committed recklessly; or
(2) a homicide which would otherwise be murder is committed under the influence of extreme mental or emotional disturbance for which there is reasonable explanation or excuse.
(emphasis added). The plain language of § 16.50 indicates that an extreme mental or emotional disturbance mitigates murder to manslaughter. It does not mitigate aggravated murder. 1
Our examination of Model Penal Code § 210.3, upon which section 16.50 was based, also indicates that an "extreme mental and emotional disturbance" will not mitigate aggravated murder to manslaughter. The comment to section 210.3 explains that "extreme mental and emotional disturbance" is a modified version of the traditional notion of "passion and provocation" that takes into account the actor's subjective state of mind. See Model Penal Code § 210.3, Commentary at 62-64 (Proposed Official Draft 1963). The commentary also indicates that "extreme mental and emotional disturbance" does not include the concept of "diminished responsibility," as that concept has been employed by some courts, particularly in California. Id. at 65-72. Evidence of a mental defect may negate the mental state of intent, but "where such intent is shown, reduction of the crime to manslaughter may be accomplished only under the modified rule of provocation stated in Section 210.3(1)(b)." Model Penal Code § 210.3, Commentary at 72. Like common law "passion and provocation," the Model Penal Code notion of "extreme mental and emotional disturbance" is entirely at odds with premeditation and deliberation. It presupposes a degree of emotional agitation, akin to that presumed by "passion and provocation," that is inconsistent with premeditation.
Therefore, once the jury found that the premeditation and deliberation elements of aggravated murder had been satisfied, it could not have found that Quichocho had acted under an extreme mental or emotional disturbance, and had no reason to consider the question. 2
Quichocho argues that during closing argument, the prosecutor made two types of improper comments. First, the prosecutor referred to the existence of a criminal record not admitted into evidence at trial. Second, the prosecutor requested that the jury convict Quichocho based on the jury's "law enforcement" role. Quichocho contends that each of these errors requires reversal.
During closing argument, defense counsel stated:
And what do you find from the evidence and the background of Richard? Fairly normal existence. High school graduate, honorably discharged from the Army, became a policeman, etcetera, etcetera. Violence was not a part of his life. He was not what they call a sociopath ... [W]hat in this man's background and his history, arrest records, convictions, thefts, burglaries, crimes, what in his background would explain what he did? And the evidence is nothing.
(emphasis added). The prosecutor made the following comments in response:
Now, you know, Mr. Hogan goes on and on about this once so perfect guy who turned whatever and killed somebody. And he says, Mr. Hogan knows I can't do that. I'm not allowed to do that.
(emphasis added).
Quichocho claims that the prosecutor's comments were improper because they falsely suggested that Quichocho had an arrest record when he did not. In the alternative, Quichocho states that even if Quichocho did have an arrest record, the remarks were still improper because the prosecution may not say anything to the jury implying that evidence exists but has not been admitted into evidence. See United States v. Morris, 568 F.2d 396, 401 (5th Cir.1978). Quichocho further argues that the remarks were prejudicial and require reversal because the comments suggested involvement in prior crimes, which discredited the thrust of the defense.
A prosecutor's remarks in closing argument are reviewed for plain error in the absence of an objection by defense counsel. United States v. Young, 470 U.S. 1, 6 (1985). This court is authorized to correct only "particularly egregious errors" that affect the "fairness, integrity or public reputation of judicial proceedings." United States v. Frady, 456 U.S. 152, 163 (1982); United States v. Atkinson, 297 U.S. 157, 160 (1936). Here, Quichocho failed to object to the prosecutor's comments and we must therefore determine whether those comments were "particularly egregious" under the Frady/Atkinson plain error standard. 3 We conclude that because the comments were "invited" by defense counsel, they were not plain error.
In Young, the Supreme Court held that a defense counsel's conduct is relevant to the plain error analysis if it "invited" the prosecutor's response.
[T]he issue is not the prosecutor's license to make otherwise improper arguments, but whether the prosecutor's "invited response," taken in context, unfairly prejudiced the defendant. In order to make an appropriate assessment, the reviewing court must not only weigh the impact of the prosecutor's remarks, but must also take into account defense counsel's opening salvo. Thus the import of the evaluation has been that if the prosecutor's remarks were "invited," and did no more than respond substantially in order to "right the scale," such comments would not warrant reversing a conviction.
470 U.S. at 12-13. See also United States v. Gwaltney, 790 F.2d 1378 (9th Cir.1986), cert. denied, 479 U.S. 1104 (1987). Here, defense counsel's comments concerning the non-existence of character evidence, including any arrest record, invited the response by the prosecution that he had not been allowed to introduce any such evidence. Taken in context, the comment did not unfairly prejudice Quichocho. Instead of falsely implying to the jury that a specific arrest record existed, the prosecution's comment merely rebutted defense counsel's suggestion that the reason the government failed to introduce negative character evidence is that none existed.
Quichocho next argues that the prosecutor improperly encouraged the jury to convict by referring to its "law enforcement" role. The prosecutor stated:
And I ask each and everyone [sic] of you to send a message because this defendant is a true killer.
* * *
* * *
I'm asking you on behalf of the people to return a verdict of guilty because you are truly the final law enforcers in our community. You know, all these parents of murdered children, all these groups for victims, they don't mean a thing in our community unless we, unless you, you are the conscience of our community, unless you send a message to the defendant, to this defendant and to all those out there in our community, that if you're going to live on our island, you're going to follow our laws. And if you don't follow our laws, Ladies and Gentlemen of the jury, then you will be held accountable to the fullest extent of the law.
(emphasis added).
Appeals to the jury to act as a conscience of the community are not impermissible unless they are specifically designed to inflame the jury. See United States v. Kopituk, 690 F.2d 1289, 1342-43 (11th Cir.1982), cert. denied, 463 U.S. 1209 (1983). In United States v. Lester, 749 F.2d 1288 (9th Cir.1984), a case involving a conspiracy to prevent a witness from testifying in a federal narcotics prosecution, we held that a prosecutor's statements to the jury that "we are all victims" and that an acquittal would be a message to the defendant that he could stop people from talking to the FBI did not "cross the line 'demarcating permissible oratorical flourish from impermissible comment...
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