Ochoa v. United States, 11665.

• Decision Date: 05 April 1948
• Docket Number: No. 11665.,11665.
• Citation: 167 F.2d 341
• Parties: OCHOA v. UNITED STATES.
• Court: U.S. Court of Appeals — Ninth Circuit

167 F.2d 341 (1948)

OCHOA v. UNITED STATES.

No. 11665.

Circuit Court of Appeals, Ninth Circuit.

April 5, 1948.

Russell K. Lambeau, of Los Angeles, Cal., and Russell H. Yeager, of El Centro, Cal., for appellant.

James M. Carter, U. S. Atty., Ernest A. Tolin, Chief Asst. U. S. Atty., Alfred P. Chamie, Asst. U. S. Atty., of Hollywood, Cal., and Ernest Zack, Asst. U. S. Atty., of Los Angeles, Cal., for appellee.

Before MATHEWS, BONE and ORR, Circuit Judges.

BONE, Circuit Judge.

By an indictment in two counts it was charged that appellant with premeditation murdered a Federal officer (in violation of 18 U.S.C.A. § 253 and § 454), and that appellant assaulted a Federal officer with a deadly weapon (in violation of 18 U.S.C. A. § 254). The jury found appellant guilty of first degree murder on count one, making no recommendation as to punishment, and guilty of assault with a deadly weapon on count two. The court accordingly sentenced appellant to suffer the death penalty. At the time of the commission of these offenses, appellant was under a suspended sentence for other offenses against the laws of the United States.

The facts in this case are not in dispute. On March 11, 1947 two Federal immigration patrol inspectors, in the course of their official duties, and in uniforms, were stopping highway traffic south of Indio, California to check for aliens illegally in the United States. They stopped an automobile driven by appellant in which they found four Mexican aliens. The aliens were removed to the rear seat of the car driven by the inspectors and appellant was directed to drive his car ahead of them into the town of Indio. Before reaching this place, appellant, with the purpose of effecting an escape, feigned automotive trouble, stopped, and leaving his car walked back to the Government car which had pulled up behind him. Appellant had just been told to return to his car and that it would be pushed into Indio when he drew an automatic pistol from his pocket and fired at the still seated inspectors. One inspector was killed and one was wounded. Appellant fled to the nearby home of his sister where he was subsequently apprehended.

At the trial appellant's counsel admitted the killing, offering only the defense of insanity. The material issues in the case were the degree of the offense and appellant's mental competence.

The contention which appellant principally emphasizes on appeal is that the trial court's examination of the sole medical witness constituted prejudicial error. The witness, a physician specializing in psychiatry, was appointed to examine appellant before trial, was called by the court as its witness, as a part of appellant's case, and appellant's counsel was permitted by the court to ask this witness leading questions.

The witness's testimony continues through 48 pages of the typewritten reporter's transcript and does not admit of adequate recapitulation here. It may be remarked, however, that upon direct and cross examination the witness described the examination he had given to appellant and concluded that appellant has a deficient mentality, a split personality and an intelligence quotient of about 10½ years, but knew right from wrong; that on the date of the killing he was in a temper tantrum, but that the witness could not tell whether appellant would know right from wrong when in such a tantrum; that his condition was generally the same on the day of the examination as on the day of the killing; that at the time a person with appellant's personality and mentality is provoked he is insane; that by insane the witness meant he becomes unable to adjust himself to his environment and may become dangerous; that it is difficult to tell whether an otherwise normal person under extreme stress or in a rage is sane, but that any person who commits crime is not then exercising reason; that when appellant was in a trantrum he could devise a means of carrying out his objective and would be conscious of his acts, but would lack the reasoning of a normal individual.

The trial judge questioned the witness regarding the mental tests he had applied to appellant, and interrogated him at some length as to his meaning of insanity and as to the nature of appellant's condition. Appellant asserts that the manner of this questioning was biased, argumentative, belittling and more fitting a prosecutor's method of cross-examination. Upon careful study of the record, we do not agree with this contention.

In light of appellant's evidently greater acquaintance with the Spanish or Mexican language than with English, and his lack of much formal education, the judge's queries as to the applicability of these tests (which included knowledge and use of English words) to those of varied races and education, appear both natural and proper. The doctor's testimony respecting the meaning he ascribed to insanity in general and to appellant's condition in particular, while not at all evasive, was sufficiently obscure — considering the determination necessary to be reached by a lay jury — to suggest and justify the supplemental questions which the judge propounded. The testimony of the witness in reply to counsel left considerable to be desired so far as assisting the jury in resolving whether appellant was capable of knowing the nature of his act and of distinguishing between right and wrong at the time. The perhaps unfortunate but definite hiatus between the concepts and parlance of psychiatry and of law apparently occasioned a confusion which the trial judge properly tried to clarify. The record leaves with us the conviction that this inquiry was an effort on the part of an able, conscientious and cautious judge to eliminate as far as possible any obscurities or confusion which might result from the testimony of a psychiatrist. We see nothing in the questions of the judge which tainted the trial with an element of unfairness to appellant. For a discussion of the subject, see: Holloway v. United States, 80 U.S.App.D.C. 3, 148 F.2d 665.

The examination by the court was not conducted in a manner which demonstrated any bias on his part against, or disregard of, the witness's testimony. Some of the questions, extracted by appellant in his brief, indicate that they called for answers previously covered by the testimony or evince occasional impatience of the court with the response. However, questions and comments of the court must be read in their context and viewed with a perspective of the whole proceedings. United States v. Warren, 2 Cir., 120 F.2d 211, 212. So reading and viewing them in this case, we cannot spell out error prejudicial to appellant.

We are well aware of the danger implicit in a situation where the judge assumes, or appears to assume, the role of advocate, and of the necessity for his sedulously maintaining an attitude of judicial impartiality between the accused and the accuser. One of the most frequently quoted of the long line of Federal decisions emphatically enunciating these precepts is Adler v. United States, 5 Cir., 182 F. 464. They are logical and reasonable restrictions but they in no wise dilute the salutary and wholesome rule that it is the right and duty of the Federal trial judge to facilitate, by direct participation, the orderly progress of a trial. Queries by the judge which aid in clarifying the testimony of witnesses, expedite the examination or confine it to relevant matters in...