U.S. v. Solomon

• Decision Date: 22 February 1985
• Docket Number: Nos. 84-3069,84-3070,s. 84-3069
• Citation: 753 F.2d 1522
• Parties: 17 Fed. R. Evid. Serv. 779 UNITED STATES of America, Plaintiff-Appellee, v. Louella G. SOLOMON, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. John Elias WESLEY, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1522

753 F.2d 1522

17 Fed. R. Evid. Serv. 779

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.

Argued and Submitted Jan. 16, 1985.

Decided Feb. 22, 1985.

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

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 The only Ninth Circuit case addressing narcoanalysis excluded a recording of and psychiatric testimony supporting an interview conducted under the influence of sodium pentathol, a precursor of sodium amytal. Lindsey v. United States, 16 Alaska 268, 237 F.2d 893 (9th Cir.1956). The case at bar is distinguishable because no testimony concerning the narcoanalysis was offered at trial. Only George's current recollection of events was presented.

trial because his testimony could not be reliable after he underwent a sodium amytal interview. In response, the government asserts that the trial court scrutinized George's sodium amytal interview and carefully applied the teachings of the hypnosis cases in this circuit. Moreover, Solomon was not precluded from presenting evidence to the jury that George's testimony was enhanced by the use of sodium amytal.

In an analogous situation, this circuit has held that the current recollections of witnesses whose memories have been refreshed by hypnosis are admissible, with the fact of hypnosis relevant to credibility only. United States v. Adams, 581 F.2d 193, 198-99 (9th Cir.), cert. denied, 439 U.S. 1006, 99 S.Ct. 621, 58 L.Ed.2d 683 (1978). We have cautioned, however, that "[g]reat care must be exercised to insure" that statements after hypnosis are not the product of hypnotic suggestion. Id.

We find no abuse of discretion in the trial court's ruling to admit the testimony of the witness George. The court's order denying Solomon's Motion to Suppress reflects a careful balancing of reliability against prejudicial dangers:

The sodium amytal examination of George was performed at a Yakima hospital by Dr. Fred Montgomery, a board certified psychiatrist with training and experience in narco-analysis and hypnosis. Dr. Montgomery had completed a residency in psychiatry and had used sodium amytal on at least fifteen to twenty occasions in civil and criminal cases during his fifteen years of practice. Also present at the George examination were his attorney, William Murphy, Assistant United States Attorney Robert S. Linnell, and defendant Wesley's attorney Adam Moore....

There is no evidence to support an inference that George's examination was in any way suggestive or leading. The evidence establishes the contrary. All questions were propounded by Dr. Montgomery in a hospital setting pursuant to medically accepted standards. Questions from attorneys during the examination were written and then forwarded to Dr. Montgomery. ²

The trial court did not err in refusing to exclude George's testimony. Solomon's conviction is affirmed.

B. Wesley's Statements During Narcoanalysis

Wesley wanted to introduce expert testimony by Dr. Montgomery explaining the effects of sodium amytal and relating the statements that Wesley made while under its influence. The testimony was to rehabilitate Wesley's credibility after the government impeached it with an earlier confession. The trial court held that narcoanalysis was not reliable enough to admit into evidence, but that Dr. Montgomery could testify to the statements made to him by Wesley, without an explanation of the circumstances.

Expert testimony is admissible if the jury may receive "appreciable help" from it. United States v. Awkard, 597 F.2d 667, 669 (9th Cir.), cert. denied, 444 U.S. 885, 969, 100 S.Ct. 179, 460, 62 L.Ed.2d 116, 383 (1979). The necessary balancing of the probative value of the evidence against its prejudicial effect is committed to the discretion of the trial court. Id. at 669-70; see Fed.R.Evid. 702.

Evidence based on a novel scientific technique is admissible if it is generally accepted as a reliable technique among the scientific community. Frye v. United States, 293 F. 1013, 1014 (D.C.Cir.1923). The admission of a tape recording of narcoanalysis with an expert's explanation of the technique was held prejudicial error by this court in 1956. Lindsey, 237 F.2d at 898.

Dr. Montgomery testified in the absence of the jury that narcoanalysis is now a generally accepted investigative technique. He stated that safeguards against suggestion of memories by the examiner are essential. He opined that Wesley's interview was safeguarded adequately by production of a transcript, the presence of prosecuting and defense attorneys, and having the examining psychiatrist pose all of the questions.

Dr. Montgomery testified also that narcoanalysis is useful as a source of information that can be valuable if verified through other sources. At one point he testified that it would elicit an accurate statement of subjective memory, but later said that the subject could fabricate memories. He refused to agree that the subject would be more likely to tell the truth under narcoanalysis than if not so treated.

Wesley wanted to use the psychiatric testimony to bolster the credibility of his trial testimony that George started the fatal fire. Wesley's statement shortly after the fire was that he himself set the fire. The probative value of the statement while under narcoanalysis that George was responsible was the drug's tendency to induce truthful statements.

Montgomery admitted that narcoanalysis does not reliably induce truthful statements. The judge's exclusion of the evidence concerning narcoanalysis was not an abuse of discretion. The prejudicial effect of an aura of scientific respectability outweighed the slight probative value of the evidence.

II. Speedy Trial

The Sixth Amendment establishes the right of an accused to a speedy trial. U.S.Const., Amend. VI. Wesley contends that the nine-month delay...