People of Territory of Guam v. McGravey

• Decision Date: 14 January 1994
• Docket Number: No. 92-10003,92-10003
• Citation: 14 F.3d 1344
• Parties: The PEOPLE OF the TERRITORY OF GUAM, Plaintiff-Appellee, v. Thomas V. McGRAVEY, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1344

14 F.3d 1344

The PEOPLE OF the TERRITORY OF GUAM, Plaintiff-Appellee, v. Thomas V. McGRAVEY, Defendant-Appellant.

No. 92-10003.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Nov. 4, 1992.

Decided Jan. 14, 1994.

Scott R. Grigsby, Agana, Guam, for defendant-appellant.

Robert C. Sacco, Guam, Asst. Atty. Gen., Agana, Guam, for plaintiff-appellee.

Appeal from the United States District Court for the District of Guam, Appellate Division.

Before: BROWNING, NORRIS and REINHARDT, Circuit Judges.

WILLIAM A. NORRIS, Circuit Judge:

Appellant Thomas McGravey challenges his convictions for first and second degree criminal sexual assault on the ground that the jury instructions, taken as a whole, misled the jury by directing it to give undue weight to the testimony of the victim, who was a minor.

McGravey identifies two instructions that were given and one proposed instruction that was rejected by the trial court as the basis for his appeal. Because we hold that the jury instructions, viewed in their entirety, did not lead the jury to place a disproportionate emphasis on the testimony of the alleged victim, we affirm.

FACTUAL BACKGROUND

McGravey was tried before a jury on the charge of sexually molesting his nephew on two separate occasions--first when the child was seven years old and again when the child was nine years old. Since there were no witnesses to the alleged acts, and because neither side offered any corroborating evidence to support its version of the events, the trial boiled down to a pure credibility contest between the defendant and the alleged victim, who was then ten years old.

At trial, McGravey objected unsuccessfully to two separate jury instructions. The first instruction he challenged stated:

The testimony of a victim of criminal sexual conduct need not be corroborated if the victim is believed beyond a reasonable doubt.

This instruction was patterned after 9 Guam Code Annotated Sec. 25.40, which provides that a victim's testimony need not be corroborated in prosecutions for sexual offenses. The second instruction he challenged stated:

The court shall allow a support person to be present during a child-victim's testimony. No prejudice exists because of that presence.

This instruction was taken verbatim from 8 Guam Code Annotated Sec. 75.80.

Finally, McGravey proposed the following instruction regarding the testimony of child witnesses, which the trial court rejected:

A child is not disqualified as a witness simply by reason of his youth. There is no precise age which determines a child's competency. This depends on his capacity and intelligence, on his understanding of the difference between truth and falsehood, and on his appreciation of his duty to tell the truth.

As with all other witnesses, you are the sole judge of the credibility of a child who testifies. You may consider not only his age but his demeanor on the stand, his capacity to observe facts and to recollect them, his ability to understand questions put to him and to answer them intelligently, whether he impresses you as having an accurate memory and recollection, whether he impresses you as a truth-telling individual, and any other facts and circumstances which impress you as significant in determining his credibility. On the basis of your consideration you may give the child's testimony such weight as you in your judgment think it is entitled to.

Children are likely to be more suggestible than adults. Moreover, children may not have a full understanding of the serious consequences of the testimony they give and the charges they make. You should therefore consider the capacity of a child witness to distinguish truth from falsehood and to appreciate the seriousness of his testimony in evaluating the testimony.

This instruction was taken from 1 Devitt & Blackmar, Federal Jury Practice and Instructions, Sec. 17.17 (3rd ed. 1977).

Following his conviction on both counts, McGravey appealed to the Appellate Division of the District Court of Guam, raising all three of his challenges to the jury instructions. The Appellate Division affirmed McGravey's convictions. Our review of the Appellate Division's ruling is de novo. Guam v. Yang, 850 F.2d 507, 511 (9th Cir.1988) (en banc).

STANDARD OF REVIEW

In reviewing jury instructions, "[o]ur inquiry is whether the jury instructions as a whole are misleading or inadequate to guide the jury's deliberations." United States v. Joetzki, 952 F.2d 1090, 1095 (9th Cir.1991). The trial judge has substantial latitude in formulating jury instructions so long as the instructions fairly and adequately cover the issues presented. United States v. Powell, 955 F.2d 1206, 1210 (9th Cir.1992). Jury instructions, even if imperfect, are not a basis for overturning a conviction absent a showing that they constitute an abuse of the trial court's discretion. Joetzki, 952 F.2d at 1095.

I. THE NON-CORROBORATION INSTRUCTION

Appellant contends that the non-corroboration instruction--that no corroboration of the victim's testimony is necessary if the victim is believed beyond a reasonable doubt--erroneously implied that the jury was to evaluate the testimony of the victim differently, and indeed more favorably, than that of any other witness--particularly the accused.

Appellant's objection is not to the substance of this instruction, but to the fact that the court gave no analogous instruction with regard to the defendant's testimony. His contention is that by specifying that the jurors may believe the alleged victim's testimony without corroboration--but saying nothing of the sort about the defendant's testimony--the instruction led the jurors to believe that the defendant's testimony was unworthy of belief unless it was corroborated by other evidence. The upshot, he argues, was to "shift[ ] the burden of persuasion to the defendant ... by requiring him to produce corroborative evidence of his innocence." Defendant-Appellant's Opening Brief at 7. We disagree.

A single instruction may not be judged in artificial isolation, but must be viewed in the context of the overall charge. United States v. Marsh, 894 F.2d 1035, 1040 (9th Cir.), cert. denied, 493 U.S. 1083, 110 S.Ct. 1143, 107 L.Ed.2d 1048 (1990). When the non-corroboration instruction is reviewed in context, it becomes clear that the jurors were not misled into believing they were to attach any special weight to the testimony of the alleged victim. In fact, quite to the contrary, the judge gave numerous instructions which made it plain to the jury that it was to treat the testimony of the alleged victim no differently from the testimony of any other witness. For instance, he instructed the jurors that they were "the sole judges of the credibility of the witnesses and the weight their testimony deserves," and he explained the factors that the jurors should consider in evaluating the testimony of each of the witnesses brought before them. ¹ Moreover, he stated that they "may disbelieve all or any part of any witness' testimony," and that it was important for them to evaluate "the extent to which, if at all, each witness is either supported or contradicted by other evidence." The jury was explicitly told to "judge the testimony of the defendant just as you [would] judge the testimony of any other witness." And finally, the jury was admonished that "[t]he weight of the evidence presented by each side does not necessarily depend on the number of witnesses testifying on one side or the other. You must consider all the evidence in the case, and you may decide that all the testimony of a smaller number of witnesses on one side has a greater weight than that of the larger number on the other." In light of these instructions, we think that no reasonable juror would believe that the testimony of the alleged victim was entitled to any special deference.

Nor would a reasonable juror have believed that the defendant was required to produce corroborating evidence in support of his testimony. In his instructions to the jury, the trial judge properly emphasized that the defendant was entitled to a presumption of innocence, and that the burden was on the government to prove its case beyond a reasonable doubt.

In sum, the combined effect of these instructions was to make clear that the testimony of each witness was to be judged by the same standard. Hence, in light of the entirety of the instructions given, we hold that the trial court did not err by giving the non-corroboration jury instruction. ²

II. THE SUPPORT PERSON INSTRUCTION

Appellant next argues that the support person instruction was improper because it used the phrase "child-victim" rather than "child witness." ³ He claims that the use of this phrase improperly singled out the victim apart from all other witnesses and prejudiced his defense. This claim lacks merit.

The trial court was careful to define its use of the term "victim" so as to avoid the possibility of confusion or prejudice. Indeed, the court stated explicitly that "[a] 'victim' is defined or means the person whom the defendant allegedly subjected to criminal sexual conduct" (emphasis added). This definitional instruction was an adequate safeguard against any potential prejudice that might conceivably flow from the use of the word "victim."

III. THE CHILD WITNESS INSTRUCTION

Appellant also argues that the trial court erred in refusing to give his requested jury instruction stressing the suggestibility of children. He contends that the instruction was particularly necessary here because it went directly to his defense theory--namely, that the child's mother coerced him into fabricating these accusations against the defendant as a result of a bitter feud between the child's mother and appellant.

We decline appellant's invitation to establish as the law of Guam a rule requiring the trial court to give a special child witness instruction when a child testifies in a sexual abuse case. We know of not a...