Ignacio v. People of Territory of Guam

• Citation: 413 F.2d 513
• Decision Date: 07 July 1969
• Docket Number: No. 22412,22412
• Parties: Francisco S. A. IGNACIO and Antonio S. A. Ignacio, Appellants, v. PEOPLE OF the TERRITORY OF GUAM, Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

413 F.2d 513 (1969)

Francisco S. A. IGNACIO and Antonio S. A. Ignacio, Appellants, v. PEOPLE OF the TERRITORY OF GUAM, Appellee.

Nos. 22412, 22412A.

United States Court of Appeals Ninth Circuit.

July 7, 1969.

John J. Carniato (argued), of Arriola, Bohn & Dierking, Reyes & La Morena, Eugene H. Bramhall, Agana, Guam, for appellants.

Paul J. Abbate (argued), Atty. Gen., John P. Raker, Island Atty., Agana, Guam, for appellee.

Before JONES^*, HAMLEY and MERRILL, Circuit Judges.

JONES, Circuit Judge:

The Ignacio brothers, Francisco and Antonio, appeal from the conviction in the District Court for the Territory of Guam of first degree murder and a sentence of life imprisonment imposed on each of the appellants. The victim of the homicide was Gary H. Jaasma, a sailor in the United States Navy stationed on the island of Guam. At the time Jaasma was killed, Antonio Ignacio was a few months short of his seventeenth birthday and his brother Francisco was in his early twenties.

On July 14, 1967, Jaasma was found dead behind a bowling alley in Asan, Guam. The next day, July 15, pursuant to the investigation of an auto theft on July 13, 1967, and to the investigation of gunshots heard coming from appellants' house, a search warrant was obtained to search the Ignacio residence. During the search, bucket seats from the stolen auto and a number of firearms were found and the appellants were taken into custody. An amended information charging them with murder was filed on July 31, 1967; counsel was appointed on August 3, 1967; and they were tried and convicted of first degree murder on September 11 and 12, 1967.

Appellants urge an appeal that numerous errors of law were committed in the district court. The assigned errors will be considered seriatim.

Appellants' most compelling argument of error relates to whether the testimony of two witnesses, Frank Mendiola and Francisco Babauta, violated the appellants' right of confrontation as secured by the Sixth Amendment. Mendiola testified as to declarations of Antonio Ignacio which incriminated his brother Francisco. Babauta, a policeman, testified as to declarations of Francisco Ignacio which incriminated Antonio. No objections, either because of violation of constitutional rights or on hearsay, were made by attorneys for appellants. At no time was severance requested.

During the pendency of the present appeal, the United States Supreme Court decided the case of Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476, and held that the rule of Bruton was to be applied retroactively. Roberts v. Russell, 392 U.S. 293, 88 S.Ct. 1921, 20 L.Ed.2d 1100. In Bruton the Supreme Court held that the introduction at a joint trial of a defendant's extrajudicial confession, where that defendant did not take the stand, inculpating a co-defendant, violated the co-defendant's right of cross-examination secured by the confrontation clause of the Sixth Amendment, despite specific limiting instructions by the trial judge as to the restricted use the jury might make of such a confession. In so holding, the Supreme Court expressly overruled Delli Paoli v. United States, 352 U.S. 232, 77 S.Ct. 294, 1 L.Ed.2d 278.

This Court has recently had the opportunity to examine the holding of Bruton and apply its principles. Rios-Ramirez v. United States, 9th Cir. 1968, 403 F.2d 1016, cert. denied 394 U.S. 951, 89 S.Ct. 1292, 22 L.Ed.2d 486; Santoro v. United States, 9th Cir., 1968, 402 F.2d 920. In both Rios-Ramirez and Santoro we found the rule of Bruton inapplicable because the co-defendants whose out-of-court statements were used to incriminate petitioners Rios-Ramirez and Santoro all took the stand and testified regarding the subject of their extrajudicial declarations.

The present appeal differs from Rios-Ramirez and Santoro in that neither of the Ignacio brothers took the stand and hence were not cross-examined with respect to their extrajudicial statements. Except for other considerations, it would appear that Bruton requires reversal. But the Supreme Court this term instructs us that every violation of Bruton does not constitute plain error. Harrington v. California, 395 U.S. 250, 89 S.Ct. 1726, 23 L.Ed.2d 284.

In Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705, reh. denied, 386 U.S. 987, 87 S.Ct. 1238, 18 L.Ed.2d 241, the Supreme Court concluded that "there may be some constitutional errors which in the setting of a particular case are so unimportant and insignificant that they may, consistent with the Federal Constitution, be deemed harmless, not requiring the automatic reversal of the conviction." 386 U.S. at 22, 87 S.Ct. at 827. The test of Chapman is that "before a federal constitutional error can be held harmless, the court must be able to declare a belief that it was harmless beyond a reasonable doubt." 386 U.S. at 24, 87 S.Ct. at 828. Examination of the record before this Court in light of Bruton v. United States, supra, and Harrington v. California, supra, convinces us that apart from the questionable testimony under consideration, the case against the Ignacio brothers "was so overwhelming that we conclude that this violation of Bruton was harmless beyond a reasonable doubt." Harrington v. California, supra, at 254, 89 S.Ct. at 1728.

The Territory of Guam's case against the Ignacios was not limited to circumstantial evidence, nor to the testimony now claimed to be objectionable. Frank Mendiola, a friend of the appellants, who was with them the night of the homicide but not present at the scene of the crime, testified that Francisco Ignacio admitted to him that he shot the sailor. Mendiola also testified that Antonio Ignacio pointed out the spot where the sailor was killed and told him where the sailor had been picked up. There was also expert testimony that three carbine shells found at the scene of the homicide were from the carbine found in the Ignacio house. The same ballistics expert identified a bullet found at the scene as being from a revolver discovered in the Ignacio home. Of course, Mendiola's testimony of Antonio Ignacio's admissions could be properly considered as against Antonio. In a like manner, Francisco's statement, overheard by witness Babauta could be considered as against Francisco. The admitted declarations, as they referred to others than the declarants, were unimportant and insignificant when compared to the force of the whole convicting testimony.¹ Rule 52(a), Federal Rules of Criminal Procedure, recognizes that unimportant defects in a trial are to be ignored when it states: "Any error, defect, irregularity or variance which does not affect substantial rights shall be disregarded."

In any event it is doubtful that the question of the admissibility of the declarations of the Ignacio brothers is properly before this Court. Although the brothers were both represented by experienced and able counsel, no objections on constitutional or other grounds were made to the testimony now under examination, nor can it be said that the admission of the testimony constituted plain error under Rule 52(b), Federal Rules of Criminal Procedure. The Supreme Court has held that a general objection "is insufficient to preserve such a specific claim as violation of a constitutional provision in obtaining the evidence." On Lee v. United States, 343 U.S. 747, 749-750, n. 3, 72 S.Ct. 967, 970, 96 L.Ed. 1270. Here even a general objection was not made, much less a specific objection to a violation of a constitutional right. This Court is reluctant to consider objections raised for the first time on appeal. Failure to object acts as a waiver. Hammond v. United States, 9th Cir. 1969, 408 F.2d 481; Montgomery v. United States, 9th Cir. 1969, 407 F.2d 1312; Darden v. United States, 9th Cir. 1969, 405 F.2d 1054. See also Migliore v. United States, 5th Cir. 1969, 409 F.2d 786 (April 18, 1969); United States v. Dolleris, 6th Cir. 1969, 408 F.2d 918.

The appellants' next most compelling contention is that they were denied a trial by an impartial jury because they were "substantially prejudiced and denied a fair trial due to the nature of the pre-trial publicity attendant to this proceeding." The United States Constitution guarantees to an accused the right, in all criminal prosecutions, to a speedy and public trial by an impartial jury. In order to insure that an accused received a fair trial by such a jury, several procedural safeguards have been established. Thus, a defendant may (1) seek a change in venue, (2) seek a continuance, (3) question the prospective jurors during voir dire examinations as to whether they were influenced by pretrial publicity, (4) challenge the jurors for cause, (5) exercise his peremptory challenges, (6) challenge the whole jury panel and (7) obtain precautionary instructions from the judge. These safeguards were available to the appellants.

The record discloses that the publicity which the appellants contend biased the jury was concentrated in three news articles appearing within five days after their arrest on July 27, 1967. The last of these articles appeared approximately six weeks before the trial began. The jury was selected and the trial began September 11, 1967; it concluded September 12. On August 3, 1967, the attorney for Francisco Ignacio filed a number of motions, among them a motion for a change of venue. This motion was argued and denied on August 4, the day of arraignment. Included with this motion was an affidavit which contained the material which appellants contend denied them a fair trial. There could be no constitutional infirmity in the ruling denying the motion for change of venue if, in fact, the appellants actually received a trial by an impartial jury. Beck v. Washington, 369 U.S. 541, 82 S.Ct. 955, 8 L.Ed. 98, 111, reh. denied 370 U.S. 965, 82 S.Ct. 1575, 8 L.Ed.2d 834. The question is presented whether, in fact, appellants did receive a trial by an impartial jury.

Appellants' trial began approximately...