U.S. v. Benally

• Decision Date: 05 March 1985
• Docket Number: No. 83-2463,83-2463
• Parties: 17 Fed. R. Evid. Serv. 989 UNITED STATES of America, Plaintiff-Appellee, v. Frank BENALLY, Defendant-Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 773

756 F.2d 773

17 Fed. R. Evid. Serv. 989

UNITED STATES of America, Plaintiff-Appellee, v. Frank BENALLY, Defendant-Appellant.

No. 83-2463.

United States Court of Appeals Tenth Circuit.

March 5, 1985.

Presiliano Torres, Asst. U.S. Atty. (William L. Lutz, U.S. Atty., Albuquerque, N.M., with him on brief), for plaintiff-appellee.

Tova Indritz, Federal Public Defender, Albuquerque, N.M., for defendant-appellant.

Before McKAY, BREITENSTEIN and LOGAN, Circuit Judges.

BREITENSTEIN, Circuit Judge.

Appellant-defendant Frank Benally was indicted for, and convicted by a jury of, vehicular homicide in violation of 18 U.S.C. Secs. 1153 and 1112. He appeals from the sentence pronounced. We reverse.

On February 18, 1983, defendant, a Navajo Indian, gave his neighbors and relatives, Jerry and Dorothy Wilson, also Navajo Indians, a ride from Newcomb, New Mexico, on the Navajo Reservation to Farmington, New Mexico, to do various errands. They drove first to Shiprock, New Mexico, and went to the Turquoise Bar where Jerry Wilson purchased one pint and one fifth of Garden Delux wine. Jerry Wilson and the defendant split the fifth of wine. Tr. 112-113, 415. They met there Ernest and David Kanoi who asked for a ride back to Newcomb. They said they would pick them up after doing their errands. They did so and picked up the Kanois. They then drove to Zia where the Kanois purchased vodka and beer at a bar and Jerry Wilson purchased wine. Jerry Wilson drank wine and the Kanois vodka and beer. The defendant admitted only to drinking beer after the group left the bar at Zia. They proceeded on towards Newcomb with defendant as the driver. The Kanoi brothers were in the front seat, and Dorothy and Jerry Wilson in the back seat. Defendant attempted to pass a truck, Tr. 420, and was travelling approximately 74 miles an hour. Tr. 288. He passed the truck in the passing lane, saw an oncoming car, swerved to the right to avoid it, and the car turned over. Dorothy Wilson was pinned under it and died as a result of her injuries.

Defendant left the scene of the accident and went to his home. Some time later he returned to the scene of the accident and was accosted by a relative of Dorothy Wilson. A police officer took him to a patrol car. Defendant claims that Ernest Kanoi grabbed the steering wheel thereby causing the accident.

Defendant filed a motion to suppress the evidence of statements made by defendant to the officer who took him to the patrol car and later to the hospital. There is a difference of opinion as to whether defendant was under arrest and whether the statements were made voluntarily. At the hearing the defendant announced that the arresting officer, Wilson Billie, was not present. Billie was not under a subpoena to appear. The court peremptorily denied the motion. A recess of five minutes was taken. Defendant announced that Billie was in the hall. The court said that it had ruled on the motion.

Section 3501(a) Title 18 U.S.C. provides:

"In any criminal prosecution brought by the United States ... a confession ... shall be admissible in evidence if it is voluntarily given. Before such confession is received in evidence, the trial judge shall, out of the presence of the jury, determine any issue as to voluntariness."

Rule 12(b)(3), Fed.R.Crim.P. provides that a motion to suppress evidence shall be made before trial. Section 3501(a) "codifies the constitutional requirement for a hearing on the voluntariness of a defendant's confession announced by the Supreme Court in Jackson v. Denno, 378 U.S. 368 [84 S.Ct. 1774, 12 L.Ed.2d 908]." United States v. Janoe, 10 Cir., 720 F.2d 1156, 1164, cert. denied --- U.S. ----, 104 S.Ct. 1310, 79 L.Ed.2d 707. The government insists that the error was harmless in view of the cross-examination of officer Billie at the trial. Tr. 243-255. As we said in Janoe, supra at 1164:

"First, Sec. 3501(a) affirmatively requires that the 'trial judge shall ... determine any issue as to [the] voluntariness' of a confession; it does not leave the question whether to hold a hearing to the judge's discretion."

The witness was available after a five minute recess. The action of the trial court in summarily denying the motion is indicative of the impatience which the court showed throughout the trial. The judgment is reversed because of the failure of the court to hear the motion to suppress and determine the voluntariness of the confession.

Defendant argues that the court erred in instructing the jury as to intoxication under New Mexico law. Section 1153, 18 U.S.C. provides:

"Any Indian who commits against the person or property of another Indian or other person any of the following offenses, namely ... manslaughter ... within the Indian country, shall be subject to the same laws and penalties as all other persons committing any of the above offenses within the exclusive jurisdiction of the United States.

... any other of the above offenses which are not defined and punished by Federal law in force within the exclusive jurisdiction of the United States shall be defined and punished in accordance with the laws of the State in which such offense was committed as are in force at the time of such offense."

Section 1112(a) provides:

"Manslaughter is the unlawful killing of a human being without malice. It is of two kinds....

Involuntary--In the commission of an unlawful act not amounting to a felony, or the commission in unlawful manner, or without due caution and circumspection, of a lawful act which might produce death...."

The offense charged, involuntary manslaughter, is defined and punished by federal law under Sec. 1112 and, consequently, United States law preempts state manslaughter law. United States v. Pardee, 4 Cir., 368 F.2d 368, 373. The court apparently thought that state law would apply under the Assimilative Crimes Act, 18 U.S.C. Sec. 13. It provides that whoever commits an act on an Indian Reservation, "although not made punishable by any enactment of Congress," which would be punishable under state law shall be guilty of a like offense. The offense charged has been made punishable by an act of Congress and is not within the Assimilative Crimes Act. Pardee, supra, 368 F.2d at 373.

To prove that defendant committed involuntary manslaughter under Sec. 1112, the government must show that his conduct was grossly negligent and that he "had actual knowledge that his conduct was a threat to the lives of others ... or he had knowledge of such circumstances as could reasonably be said to have made foreseeable to him the peril to which his acts might subject others." United States v. Keith, 9 Cir., 605 F.2d 462, 463. Gross negligence is defined "as wanton or reckless disregard for human life." See United States v. Pardee, supra, 368 F.2d at 373-374.

The court properly instructed the jury on gross negligence but went on to instruct the jury that "A person is under the influence of intoxicating liquor when as a result of drinking such liquor he is less able, to the slightest degree, either mentally or physically, or both, to exercise the clear judgment and steady hand necessary to handle a vehicle with safety to himself and the public." R. 104. In so doing the court was stating New Mexico law. See Sec. 66-8-102, N.M.S.A.1978 and State v. Dutchover, App., 85 N.M. 72, 509 P.2d 264, 265. The New Mexico law of intoxication is inconsistent with federal law requiring a finding of gross negligence. It is enough to say that the Assimilative Crimes Act forbids the application of New Mexico instructions. The conviction is reversed because of the erroneous instructions to the jury. Other objections to the instructions are noted but need not be discussed.

A theory of the defense was that the accident was caused by the intervening act of Ernest Kanoi in grabbing the steering wheel. Defendant says that the court erred in excluding testimony of Jerry Wilson as hearsay. Wilson testified that because he was in the back seat he did not know if Ernest Kanoi grabbed the steering wheel. He testified that he told Paul Lucero, the defendant's investigator, that "maybe" Ernest Kanoi grabbed the wheel. Tr. 126. Defense counsel asked Wilson, "Did other people in the car, beside you or Ernest warn Ernest not to do that [grab the wheel]?" The trial court ruled that the question called for inadmissible hearsay. Defendant argues that the statements should have been admitted as an excited utterance under Fed.R.Evid. 803(2). At trial the defendant sought to have the testimony in question admitted under Fed.R.Evid. 803(24) because Kanoi was dead. Defendant did not properly preserve the issue of whether the testimony should have been admitted under Rule 803(2) to merit consideration on appeal.

In closing argument the prosecutor referred to the Kanoi incident and, according to defendant, misstated the law. No objection was made. An advocate is given "considerable latitude" in responding to his opponent's arguments. Sanchez v. Heggie, 10 Cir., 531 F.2d 964, 967, cert. denied 429 U.S. 849, 97 S.Ct. 135, 50 L.Ed.2d 122. The error, if any, does not rise to the level of "plain error." United States v. Young, 1985, --- U.S. ----, 105 S.Ct. 1038, 84 L.Ed.2d 1.

Defendant objects to the reception of evidence of an Intoxilyzer test given him after the accident. The test determines the quantity of alcohol in the system. The test showed that defendant had a blood-alcohol concentration of .24, more than twice the legal limit in New Mexico. As the test was run by an Indian officer on the Indian reservation, the New Mexico regulations regarding the qualifications of the testing officer and the maintenance of the machine do not apply. The record reveals little about the officer's training or experience. He stated that he followed the basic procedures in administering the test. The last calibration of the machine had occurred in Minturn, Colorado, about two months previously. An expert for the defense testified that he would...