753 F.2d 1522 (9th Cir. 1985), 84-3069, United States v. Solomon

Docket Nº:84-3069, 84-3070.
Citation:753 F.2d 1522
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Louella G. SOLOMON, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. John Elias WESLEY, Defendant-Appellant.
Case Date:February 22, 1985
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit
 
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753 F.2d 1522 (9th Cir. 1985)

UNITED STATES of America, Plaintiff-Appellee,

v.

Louella G. SOLOMON, Defendant-Appellant.

UNITED STATES of America, Plaintiff-Appellee,

v.

John Elias WESLEY, Defendant-Appellant.

Nos. 84-3069, 84-3070.

United States Court of Appeals, Ninth Circuit

February 22, 1985

Argued and Submitted Jan. 16, 1985.

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Robert S. Linnell, Asst. U.S. Atty., Yakima, Wash., for plaintiff-appellee.

Kenneth W. Raber, Kirschenmann, Devine, Fortier & Raber, J. Adam Moore, Dobbs, Moore & Kirkevold, Yakima, Wash., for defendant-appellant.

Appeal from the United States District Court for the Eastern District of Washington.

Before WRIGHT and TANG, Circuit Judges, and CROCKER [*], Senior District Judge.

EUGENE A. WRIGHT, Circuit Judge:

The defendants appeal their convictions arising from the robbery and murder by

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arson of a woman on the Yakima Indian Reservation. We have reviewed the evidentiary rulings and constitutional arguments raised on appeal and we affirm the convictions.

FACTS

While drinking at a tavern on the night of July 25, 1983, defendants Louella Solomon and her brother, John Wesley, met Katherine Piel Heath and offered her a ride. At 2:00 on the morning of the 26th, the three joined Peter George, defendants' 17-year-old nephew, who was waiting in a car. Solomon eventually drove them all to a residence on Progressive Road. All the actors were Yakima Indians and the house was on Indian National Tribal trust land on the Yakima Indian Reservation.

The three surviving participants gave conflicting testimony as to the events preceding the fire. Wesley and George each changed his account of the events during the course of investigation and trial. The following account of that night's events is presented in the light most favorable to the government.

Solomon suggested that Wesley and George obtain Heath's purse. Inside the house Wesley either struck Heath or held her while George struck her, knocking her unconscious. Her purse was taken outside to Solomon who took money from it (at least $2.00). At Solomon's suggestion, the purse was burned in a wood stove inside the house.

At some point Solomon stated that Heath had to be killed. Wesley and George returned inside and one of them started a fire in some curtains. Solomon had agreed to the burning of the house. The defendants and George left the house and drove away, leaving Heath inside.

The fire was discovered at 4:00 a.m. and allowed to burn itself out. Heath's remains were found later during a check of the scene by a firefighter. An autopsy identified carbon monoxide poisoning as the probable cause of death.

Wesley was arrested and detained by Tribal authorities on July 28th. He was federally indicted on October 24th and remained in custody until trial. George was granted complete immunity by federal and state authorities in return for his cooperation.

On December 22, 1983, at Wesley's request, a psychiatrist administered sodium amytal and interviewed him under its influence. On January 20, 1984, at the government's request, George was interviewed while under the influence of sodium amytal. A new indictment was returned, charging Solomon also.

A jury trial resulted in Solomon's conviction for first degree murder and robbery and Wesley's conviction for first degree murder and arson endangering life. Both were sentenced on the murder count to life imprisonment with the possibility of parole and each received a concurrent sentence on the other charge.

ANALYSIS

I. Evidentiary Challenges

The district court's evidentiary rulings will be upheld on appeal unless the court abused its discretion, United States v. Merrill, 746 F.2d 458, 465 (9th Cir.1984), cert. denied, --- U.S. ----, 105 S.Ct. 926, 83 L.Ed.2d ---- (1985), or committed "manifest error." United States v. Marabelles, 724 F.2d 1374, 1381 (9th Cir.1984).

Dr. Frederick Montgomery, a psychiatrist, conducted the separate interviews of Wesley and the witness George while they were under the influence of sodium amytal, administered intravenously. Such interviews are referred to as "narcoanalysis." See McCormick on Evidence, 632 (3d ed. 1984). Both interviews were attended by an Assistant United States Attorney and Wesley's attorney. George's attorney also witnessed his interview. 1

A. Taint of Witness George

Solomon contends that George's testimony should have been excluded from the

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trial because...

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