30 F.3d 1144 (9th Cir. 1994), 92-10619, United States v. Chischilly

Docket Nº:92-10619.
Citation:30 F.3d 1144
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Daniel Joe CHISCHILLY, Defendant-Appellant.
Case Date:July 25, 1994
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit

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30 F.3d 1144 (9th Cir. 1994)

UNITED STATES of America, Plaintiff-Appellee,


Daniel Joe CHISCHILLY, Defendant-Appellant.

No. 92-10619.

United States Court of Appeals, Ninth Circuit

July 25, 1994

Argued and Submitted Nov. 1, 1993.

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[Copyrighted Material Omitted]

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Deborah Williams, Asst. Federal Public Defender, Phoenix, AZ, for defendant-appellant.

Stanley L. Patchell, Asst. U.S. Atty., Phoenix, AZ, for plaintiff-appellee.

Appeal from the United States District Court for the District of Arizona.

Before: CHOY, CANBY, and NOONAN, Circuit Judges.

Opinion by Judge CHOY; Dissent by Judge NOONAN.

CHOY, Circuit Judge:

On July 2, 1992, appellant Daniel Chischilly ("Chischilly") was convicted by a jury in the United States District Court for the District of Arizona of aggravated sexual abuse and murder in violation of 18 U.S.C. Secs. 1111, 1153 and 2241(b)(1). Chischilly appeals, challenging six aspects of the court's ruling and one aspect of sentencing, including (1) the judge's refusal to recuse himself on the basis of prior dealings with the defendant in state court proceedings; (2) the finding that Chischilly was competent to stand trial; (3) the finding that Chischilly consented to give a blood sample despite his prior request for an attorney; (4) the admission of testimony relating to Chischilly's DNA test results; (5) the finding of a sufficient nexus between vehicular assault and rape to support a felony murder charge; (6) the refusal to give requested jury instructions on involuntary manslaughter, a lesser included offense; and (7) the imposition of concurrent life sentences based on aggravating circumstances in the absence of a sufficient statement of reasons for an upward departure.

Having jurisdiction under 28 U.S.C. Sec. 1291 and 18 U.S.C. Sec. 3742, we affirm Chischilly's conviction but vacate the concurrent life sentence imposed on Count II, aggravated sexual abuse.


Chischilly's conviction arises out of the rape and murder of Sheila Tso on the outskirts of Sanders, Arizona on January 1,

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1990. Chischilly is a Navajo Indian living in a remote rural part of a Navajo reservation in Northern Arizona. Shortly after noon on New Year's Day, 1990, Chischilly appeared at the Sanders fire station. Visibly shaken, he informed a fireman that an accident had occurred on the reservation three miles away and that a woman was lying hurt beside Querino Canyon Road.

Chischilly directed the firemen and a team of paramedics to a portion of the road's shoulder showing fresh tire tracks. He then retraced 60 feet of drag marks to lead them to the victim. Ms. Tso was found in the shade of a roadside tree, lying spread-eagled and half-naked amidst patches of snow, her undergarments removed and shirt lifted up around her neck. The paramedics rushed the victim's cold and pulseless body to an emergency room. Upon arrival at the hospital, Ms. Tso was found to be already in full arrest and was pronounced dead. An autopsy revealed cerebral contusions, a fractured pelvis and backbone, and bruising on the back of the legs. The examining physician, Dr. McFeely, later testified that Ms. Tso's injuries indicated that she had been struck from behind by a vehicle with a great deal of force, lost consciousness immediately and eventually died of multiple injuries and hypothermia.

When an Arizona Highway Patrol officer arrived at the scene of the accident, Chischilly tried unsuccessfully to flee. He told the officer that, while on foot, he discovered drag marks leading to a woman lying half-naked on the ground but still breathing. Chischilly added that he then hitchhiked to the fire station to seek help. Chischilly initially repeated this account to officers who arrived subsequently, but then changed his account to state that he had been driving his pickup truck instead of walking. An officer described Chischilly as becoming increasingly nervous at this time and having a throbbing pulse in his neck.

Government witnesses later testified that Chischilly's truck matched the grill shards and tire tracks found at the scene of the accident. According to their testimony, fresh tire tracks on the dirt and gravel road indicated that the matching vehicle had headed south, past the eventual point of impact, made a U-turn off the east side of the road, veered over to the west side of the road and then stopped near the point of impact. The defense's accident reconstruction expert challenged this conclusion at trial.

At the scene of the accident, Navajo police arrested Chischilly on tribal charges, read him his Miranda rights and detained him in a police car. Several hours later, an Agent Burke of the Federal Bureau of Investigation (FBI) arrived and approached Chischilly. Agent Burke asked Chischilly whether he wanted a lawyer. When Chischilly answered in the affirmative, Agent Burke asked no further questions.

On January 9, 1990, eight days later, Agent Burke went to see Chischilly in the tribal jail. After Agent Burke advised him of his Miranda rights, Chischilly signed a waiver of these rights. Chischilly stated that from his previous arrests he was familiar with his Miranda rights, but said that he was nonetheless willing to speak with Agent Burke. Chischilly then offered that he had hit the victim with his truck after swerving to avoid an oncoming car. Chischilly also admitted that he had dragged her to a tree, taken off her clothes, had intercourse with her, wiped sperm from her vagina with a bra and left. At a pretrial hearing held on August 20, 1991, the district court suppressed this statement as having been obtained in violation of Edwards v. Arizona, 451 U.S. 477, 101 S.Ct. 1880, 68 L.Ed.2d 378 (1981).

Agent Burke again went to see Chischilly in Window Rock on January 11, 1990, two days after his first jailhouse visit. Agent Burke again advised Chischilly of his Miranda rights. Chischilly responded that he remembered his rights and Agent Burke. Agent Burke then asked Chischilly if he would provide a blood sample. Chischilly stated that he would comply and that he knew the purpose of the blood sample. When Agent Burke questioned Chischilly on this point, Chischilly responded that the blood would be compared with evidence found at the scene. Agent Burke then explained a consent form to Chischilly item by item. Chischilly signed the form and was taken to the hospital to give the blood sample.

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The district court denied Chischilly's motion to suppress this evidence at a pretrial hearing held on August 20, 1991.

After his arraignment, Chischilly filed a motion for a competency determination. Judge Rosenblatt granted the motion and scheduled a hearing for February 7, 1991. While assembling his psychiatric records, Chischilly learned that in 1979 Judge Rosenblatt, then still an Arizona state court judge, had found Chischilly incompetent to stand trial on a four count sexual contact indictment. Following the 1979 competency hearing, Chischilly was released from custody without a conviction or further detention. Chischilly filed a motion requesting Judge Rosenblatt's recusal on the basis that the judge would be reluctant to again find him incompetent after learning that Chischilly had committed further crimes after being released without trial in 1979. 1 Judge Rosenblatt stated that he had no independent recollection of the 1979 competency proceedings and denied the motion for recusal.

At two pretrial competency hearings on February 7 and March 6, 1991, Chischilly offered the testimony of Dr. Otto Bendheim, a psychiatrist whose practice is described as focusing heavily on Native Americans, and Dr. Marc Walter, a neuropsychologist. The Government countered with the testimony of Dr. Alexander Don.

Dr. Walter administered two neuropsychological examinations of a combined duration of eight hours and interviewed members of Chischilly's family. From this data Dr. Walter concluded that the defendant had a verbal IQ of approximately 62 and the functional level of a five- or six-year old child. Dr. Walter testified that Chischilly could not meaningfully participate in legal proceedings and could not understand or be taught legal concepts. Dr. Walter further testified that Chischilly would be unable to assist his lawyer effectively, notwithstanding his general understanding of the defense attorney's role.

Several months before trial, Dr. Bendheim initially diagnosed Chischilly as having organic brain syndrome and temporal lobe seizure disorder, resulting in deficient intellect, illiteracy and behavioral problems. Later developments made Dr. Bendheim's diagnosis more tentative. First, Chischilly showed modest improvement in response to psychotropic drug treatment. In addition, Dr. Don conducted tests indicating that Chischilly had some long-term retention of the events surrounding the victim's death.

Dr. Don agreed with Drs. Bendheim and Walter that Chischilly had behavioral problems, a structurally abnormal brain and deficient intelligence. However, Dr. Don did not agree that the defendant was mentally retarded. In view of Chischilly's improving memory, Dr. Don testified that Chischilly was "not so disabled by mental disorder, or defect, at this time, so as to be unable to understand the nature of proceedings against him and assist counsel in the preparation of his own defense." On March 6, 1991, the district court ruled that Chischilly was competent to stand trial. Chischilly abruptly walked out of the courtroom in the middle of the first day of trial. He then renewed his incompetency motion, which the district court again denied.

Following completion of the competency hearing, Chischilly learned from the Government that FBI tests had established a match between his blood sample and semen found on the victim's clothing. Chischilly filed a motion in limine and requested a hearing pursuant to Frye v. United States, 293 F. 1013...

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