People of Territory of Guam v. Alvarez

• Decision Date: 02 April 1985
• Docket Number: No. 84-1164,84-1164
• Parties: PEOPLE OF the TERRITORY OF GUAM, Plaintiff-Appellee, v. Manuel Jose ALVAREZ, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1036

763 F.2d 1036

PEOPLE OF the TERRITORY OF GUAM, Plaintiff-Appellee, v. Manuel Jose ALVAREZ, Defendant-Appellant.

No. 84-1164.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Dec. 14, 1984.

Decided April 2, 1985.

John A. Moore, Moore, Lawlor & Hall, Agana, Guam, for plaintiff-appellee.

Howard G. Trapp, Trapp & Untalan, Agana, Guam, for defendant-appellant.

Appeal from the Appellate Division of the District Court of Guam.

Before CHOY, Senior Circuit Judge, CANBY and NORRIS, Circuit Judges.

PER CURIAM:

Appellant, Manuel Jose Alvarez, was convicted in the Superior Court of Guam of murder and aggravated assault. At trial, defense counsel asked a psychologist to testify as to whether Alvarez's actions were "a result of a mental illness, disease or defect in that he lacked substantial capacity to know or understand what he was doing, or to know or understand that his conduct was wrongful, or to control his actions?" (emphasis added) This reflects the proper test of insanity under Guam law. See 9 Guam Code Annotated Sec. 7.16. The psychologist answered in the affirmative.

Another witness, a psychiatrist, testified that Alvarez "was not suffering from a mental illness, disease or defect which would have caused him to lack a substantial capacity to know or understand what he was doing, or would have caused him to lack a substantial capacity to appreciate the wrongfulness of his conduct, or have caused him to lack a substantial capacity to conform and control his conduct to the standards of the law." (emphasis added)

Nevertheless, at the end of the testimony, defense counsel requested that the jury be instructed that "a person is legally insane if, as a result of mental disease or mental defect, he lacks substantial capacity either to appreciate the criminality of his conduct or to conform his conduct to the requirements of law." (emphasis added) The judge accepted the request and gave the instruction verbatim.

Alvarez was convicted and sentenced to life imprisonment without parole, probation or work release. Alvarez appealed to the Appellate Division of the District Court of Guam claiming that the instruction on the insanity defense constituted plain error requiring reversal of his conviction. The Appellate Division affirmed and Alvarez now appeals to this court.

8 Guam Code Annotated Sec. 90.19(c) states that "no party may assign as error any portion of an instruction ... unless he objects thereto stating distinctly the matter to which he objects and the grounds of his objection." 8 Guam Code Annotated Sec. 130.50(b) reads: "Plain errors or defects affecting substantial rights may be noticed although they were not brought to the attention of the court."

This circuit has declared that "[t]he standard of 'plain error' ... goes only to the issue of reviewability and not to the issue of whether a reversal is warranted. Thus, an error unobjected to at trial may be so plain as to warrant review ... yet the error may be harmless and, therefore, not justify a reversal." United States v. Wilson, 690 F.2d 1267, 1274 (9th Cir.1982), cert. denied, --- U.S. ----, 104 S.Ct. 205, 78 L.Ed.2d 178 (1983); see also United States v. Lopez, 575 F.2d 681, 685 (9th Cir.1978).

This case is further complicated because not only did Alvarez fail to object, but he specifically requested the insanity instruction he now argues is erroneous. It is generally accepted that errors that are invited are less worthy of consideration than those where the defendant merely fails to object. See United States v. Alexander, 695 F.2d 398, 402 (9th Cir.1982), cert. denied, 462 U.S. 1108, 103 S.Ct. 2458, 77 L.Ed.2d 1337 (1983); Kaneshiro v. United States, 445 F.2d 1266, 1270 (9th Cir.), cert. denied, 404 U.S. 992, 92 S.Ct. 537, 30 L.Ed.2d 543 (1971); Oliver v. United States, 396 F.2d 434, 435 (9th Cir.1968).

Here, defense counsel was fully aware of the correct insanity instruction but deliberately chose to give a different instruction for tactical reasons. This court has declared:

While Rule 52(b) [the federal counterpart to Guam's Sec. 130.50(b) ] may be invoked when the court believes that a party should not be unalterably and unfairly prejudiced by inadvertent or ignorant mistakes of his counsel, it is not invoked where ... the failure to object may have been deliberate and in furtherance of legitimate trial tactics. In such a case, the concern for orderly administration of justice is paramount and should control except when the integrity of the judicial process itself would otherwise suffer.

Marshall v. United States, 409 F.2d 925, 927 (9th Cir.1969). See also United States v. Sanchez-Rodriguez, 475 F.2d 61, 64 (9th Cir.1973).

The instruction given to the jury stated the test as one of capacity to appreciate "criminality" rather than capacity to know or understand that conduct was "wrongful," the operative word in Guam's insanity statute. Because this court has held that "wrongfulness" means moral wrongfulness not criminal wrongfulness, United States v. McGraw, 515 F.2d 758, 759 (9th Cir.1975); Wade v. United States, 426 F.2d 64, 71-72 (9th Cir.1970), the instruction given was indisputably erroneous and constitutes "plain error." Therefore, we review the error.

Normally, we will reverse a conviction on account of a nonconstitutional error if it is more probable than...