U.S. v. Payne

• Decision Date: 06 September 1991
• Docket Number: No. 89-10277,89-10277
• Parties: 33 Fed. R. Evid. Serv. 1316 UNITED STATES of America, Plaintiff-Appellee, v. David J. PAYNE, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1458

944 F.2d 1458

33 Fed. R. Evid. Serv. 1316

UNITED STATES of America, Plaintiff-Appellee, v. David J. PAYNE, Defendant-Appellant.

No. 89-10277.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted May 15, 1990.

Decided Sept. 6, 1991.

A.J. Kramer, Chief Asst. Federal Defender, Sacramento, Cal., for defendant-appellant.

Richard J. Bender, Asst. U.S. Atty., Sacramento, Cal., for plaintiff-appellee.

Appeal from the United States District Court for the Eastern District of California.

Before CHOY and FLETCHER, Circuit Judges, and JAMES M. FITZGERALD, District Judge. ^*

FLETCHER, Circuit Judge:

David Payne appeals his conviction, following a jury trial, on four counts of carnal knowledge of a female under age 16. Payne challenges his conviction on numerous grounds. Specifically, Payne argues that the district court committed reversible

                error when it failed to instruct the sworn jury on the presumption of innocence;  excluded evidence of other sexual acts of the victim;  admitted prior consistent statements by the victim;  admitted certain hearsay statements by the victim and by her foster mother;  and admitted into evidence a medical report.   Payne also argues that the voir dire was inadequate;  that the district judge should have recused himself;  and that the judge's conduct in the case was improper.   We conclude that these many contentions are without merit and therefore affirm the conviction
                

BACKGROUND

Defendant/appellant David Payne was indicted on January 4, 1988, in the Eastern District of California in an eleven count indictment which charged various acts of child molestation. Counts 1 through 4, of which Payne was ultimately convicted, alleged violations of 18 U.S.C. § 2032, carnal knowledge of a female under 16, Payne's 12-year old foster daughter. ¹

David Payne and his wife, Tonda, had five foster children. Among these children were Margaret (the victim) and her brother Andrew. They lived with the Paynes from March 14 to June 8, 1984. At trial Margaret was the government's principal witness. She testified that Payne began molesting her three to four weeks after she arrived at the Paynes', and that the incidents continued throughout her three-month stay. Margaret testified to particular incidents that she was able to remember because they occurred at unusual times or places.

Margaret testified that her brother Andrew had a notebook in which he wrote that he had seen Payne come in and out of her room. Margaret stated that she tore up this page and chased her brother, and beat him up. Andrew also testified and corroborated this incident. Margaret stated that she did not tell anyone about the abuse at the time because she felt she needed love and attention and didn't want to hurt Tonda, Payne's wife, or lose her friendship.

Margaret left the Paynes' home in June, 1984, and went to live with a new foster mother, Jackie Blondell. Margaret testified that the first time she told anyone about the molestation was in January 1985, when she was living at the Blondells' home. She stated that several teen-age girls were sitting downstairs at the Blondells' sharing their experiences of sexual abuse when she (Margaret) became upset and went upstairs. Margaret testified that she called Sha (one of the other girls) upstairs and told her that she had been abused by David Payne. Margaret testified that she made Sha promise not to tell anyone, but that Sha ran out of the room and told Jackie Blondell.

Dr. Hal Meadows also testified, based on an examination of Margaret nine months after she had left the Paynes', that the condition of her vagina was consistent with multiple episodes of sexual intercourse. Jackie Blondell, Margaret's second foster mother, also testified for the government.

After a seven-day jury trial and after three days of jury deliberations, Payne was convicted of four counts of carnal knowledge against Margaret. He was sentenced to three years on each count consecutively (12 years total). This appeal followed.

DISCUSSION

A. Presumption of Innocence Instruction

Payne argues that the district court committed reversible error when it failed to instruct on the presumption of innocence after the jury was sworn. During the jury selection process, the court mentioned the presumption of innocence on three occasions. After reading the charges to the venire, the court stated: "Also, I instruct you that the defendant is presumed innocent and that presumption of innocence remains with him throughout the trial and during your deliberations until it is dispelled by proof of guilt beyond a reasonable doubt." RT 56. Later on, again before the jury was sworn, the court made its second reference to the presumption of innocence instruction:

As you can see, ladies and gentleman, already in this brief span of time I've already instructed you about some legal principles that are applicable to this case. For example, that the burden of proof is on the Government to prove the charges beyond a reasonable doubt and that the defendant is presumed to be innocent. RT 60.

Finally, and also during the voir dire, the judge stated "[T]he defendant has no obligation to produce any evidence and he does not have to prove his innocence." RT 66-67. After the voir dire and the cause and peremptory challenges, the jury was sworn. RT 180. An instruction on the presumption of innocence was not included in any instructions read to the jury after it was sworn.

(1) Standard of Review

As a threshold matter, we must determine whether Payne adequately objected to the jury instructions so as to preserve this issue on appeal. When an adequate objection to jury instructions is not made, we review the jury instructions for plain error only. United States v. Kessi, 868 F.2d 1097, 1102 (9th Cir.1989). "A plain error is a highly prejudicial error affecting substantial rights." United States v. Giese, 597 F.2d 1170, 1199 (9th Cir.), cert. denied, 444 U.S. 979, 100 S.Ct. 480, 62 L.Ed.2d 405 (1979). Plain error is invoked to prevent a miscarriage of justice or to preserve the integrity and the reputation of the judicial process. United States v. Bustillo, 789 F.2d 1364, 1367 (9th Cir.1986).

Both the government and the defense submitted proposed jury instructions. At an in-chambers discussion of jury instructions and before closing arguments, the court went over the proposed jury instructions with counsel. After settling the government's jury instructions, the court stated:

I've indicated which ones I'll give and which ones I will not give and apparently there's no further objections.

Incidentally, you will be handed a package of instructions as I intend to read them to the jury so that you can follow along as I read them because sometimes I edit as I read. At the conclusion of the reading of the instructions to the jury, I will give each side an opportunity to once again object to the instructions as read on the record. RT 1271.

The court then proceeded to consider Payne's proposed jury instructions. Jury Instruction Number 1 proposed by Payne contained the presumption of innocence instruction. The court rejected this instruction, stating: "I am not inclined to give Jury Instruction Number 1, it's redundant, that is, it's covered elsewhere." RT 1271. Payne made no objection at this point.

After the jury instructions were read, the court asked counsel if they had any objections to the jury instructions as read. Defense counsel made no objection. RT 1402.

Payne relies on a footnote in United States v. Egan, 860 F.2d 904, 907 n. 1 (9th Cir.1988) in support of his argument that his submission of a presumption of innocence instruction was sufficient to preserve the issue on appeal. However, we find Egan and the cases cited therein, Brown v. Avemco Investment Corp., 603 F.2d 1367, 1370-72 (9th Cir.1979) and Martinelli v. City of Beaumont, 820 F.2d 1491, 1493-94 (9th Cir.1987), distinguishable from the present case. Those cases involved contested issues of law in which the trial court was always fully aware of the defendant's position. In Brown, the court explained what was necessary to constitute a sufficient objection to jury instructions under Fed.R.Civ.P. 51. ²In order to preserve for appeal an objection to a jury instruction, thus, it is not necessary for a party to except or object "if the party's position has previously been clearly made to the court and it is plain that a further objection would be unavailing."

Brown, 603 F.2d at 1370 (citation omitted).

More recently, we have held that only where an objection would be a "pointless formality" will we dispense with the requirement of a formal, timely, and distinctly-stated objection. Kessi, 868 F.2d at 1102. In Kessi, we stated that an objection may be a "pointless formality" when (1) throughout the trial the party argued the disputed matter with the court, (2) it is clear from the record that the court knew the party's grounds for disagreement with the instruction, and (3) the party offered an alternative instruction. Id. (citing Martinelli, 820 F.2d at 1493-94; Brown, 603 F.2d at 1371-73).

In the case at bar, there is no doubt that a specific objection from defense counsel would not have been a "pointless formality" and would have corrected the error, since it is clear from the record that the omitted instruction was simply due to judicial oversight. ³ Therefore, the rationale of Egan and the cases cited therein is inapplicable to the present case and we review only for plain error.

(2) Case-by-case approach

Payne urges us to follow United States v. Dilg, 700 F.2d 620 (11th Cir.1983), which he asserts is factually apposite and which he reads as creating some kind of "bright line" rule that giving a presumption of innocence instruction only prior to jury impanelment constitutes reversible error. ⁴ Such a reading is inconsistent with the Supreme Court's holdings in Taylor v. Kentucky, 436 U.S. 478, 98 S.Ct. 1930, 56 L.Ed.2d 468 (1978) and Kentucky v....