U.S. v. Sherlock

Decision Date27 April 1992
Docket Number87-1300,Nos. 87-1299,s. 87-1299
Citation962 F.2d 1349
PartiesUNITED STATES of America, Plaintiff-Appellee, v. Arnold SHERLOCK and Ronald Charley, Defendants-Appellants.
CourtU.S. Court of Appeals — Ninth Circuit

Thomas M. Hoidal, Asst. Federal Public Defender, Phoenix, Ariz. and John Trebon, Flagstaff, Ariz., for defendants-appellants.

Thomas M. Connelly, Asst. U.S. Atty., Phoenix, Ariz., for plaintiff-appellee.

Appeal from the United States District Court for the District of Arizona.

Before: WRIGHT and POOLE, Circuit Judges, and WILLIAMS, * District Judge.

EUGENE A. WRIGHT, Circuit Judge:

After a troublesome joint trial, a jury convicted Arnold Sherlock and Ronald Charley of assault with intent to commit rape on an Indian Reservation. This week-long trial involved the contradictory testimony of witnesses, the temporary exclusion of family members from the courtroom, prosecutorial misconduct, and several motions for severance and mistrial.

Sherlock and Charley raise many errors. They contend that excessive preindictment delay denied them due process; the court failed to afford them a public trial; its failure to sever the trials, as well as prosecutorial misconduct, denied them a fair trial; and it erred in admitting hearsay testimony and in rejecting suggested jury instructions.

We reverse Sherlock's conviction and remand for a new trial. The court committed reversible error in denying his motions for mistrial and severance primarily based on the prosecutor's misuse of Charley's extrajudicial statement implicating Sherlock. Although the joint trial may have prejudiced Charley, we conclude that it did not deny him a fair trial. We affirm his conviction.

GENERAL FACTS

The alleged rapes of Marie Rose Bennally and Thomascita Billie occurred several miles from their school on a Navajo Indian Reservation in Arizona. On March 9, 1984 the girls accompanied four Navajo Indians, including Sherlock and Charley, in a truck off the school grounds. They stopped near a windmill in the countryside where two other Indian males joined them. All drank beer except M. Sherlock, who left before the alleged crimes. At trial both girls testified that the boys forced them to drink beer. Other witnesses contradicted that testimony.

Later, the group drove further from the school and stopped in an open area. Billie testified that while in the truck with Sherlock, he locked the doors and raped her. Bennally testified that she had left the truck to go to the bathroom when Charley tripped her and forced her to have sexual intercourse.

After the alleged rapes, both girls walked to the nearby Clitso residence. Robert Clitso gave them a ride back to the dorm, where they arrived after curfew. Later that night, both girls were interviewed by Navajo investigators and examined by a physician. At trial, many questions arose as to statements made to the Clitsos, persons at the dorm, and investigators.

PROCEDURAL BACKGROUND

The original indictment charged Sherlock, Charley, M. Sherlock, and E. White, Jr. in five counts with rape and related sexual offenses. 1 Because of the common counts, crimes and evidence, the government intended to try all four defendants together. Before trial, however, the government dropped all charges against M. Sherlock and the several assault charges. On the first day of trial it dismissed with prejudice the charges against White. The final indictment consisted of only three counts. It charged Sherlock with rape of Thomascita Billie and charged Charley with rape of Marie Rose Bennally and carnal knowledge of her. 2

Sherlock and Charley moved to dismiss based on excessive preindictment delay and loss of physical evidence obtained from the alleged victims. Sherlock also moved to sever the trials on grounds that the likely admission of a statement by Charley implicating him would violate his Fifth and Sixth Amendment rights. The court denied those motions, which were renewed at trial.

The week-long trial involved inconsistent testimony from the alleged victims and other witnesses. During Bennally's testimony, the judge temporarily excluded defendants' families after he determined that closure was necessary to protect her from disruptive spectators. Neither defendant testified and only Charley put on additional witnesses in his defense. Each based his defense on the government's failure to prove guilt.

A jury convicted both defendants of assault with intent to commit rape on an Indian Reservation. 18 U.S.C. §§ 113(a), 1153. The court imposed a sentence of three years on Sherlock and five years on Charley. Both moved for a new trial, which the court denied.

Because defendants' arguments must be considered in the context of their unusual trial, we provide more detailed facts as required by our analysis of several issues.

ANALYSIS
I. Fifth Amendment Due Process Claims

Sherlock and Charley urge that preindictment delay denied them due process. They also contend that the government's failure to preserve the rape kit, allegedly exculpatory evidence, deprived them of due process. We disagree.

A. Preindictment Delay

The alleged offenses occurred on March 9, 1984, thirty-six months before the government filed the indictments in February 1987. The statute of limitation would have expired March 9, 1989. Defendants moved to dismiss the indictments due to the delay.

The Fifth Amendment guarantees that defendants will not be denied due process as a result of excessive preindictment delay. We scrutinize a violation of this guarantee under a two-pronged test. First, Sherlock and Charley must prove they suffered actual, non-speculative prejudice from the delay. United States v. Lovasco, 431 U.S. 783, 789, 97 S.Ct. 2044, 2048, 52 L.Ed.2d 752 (1977); United States v. Moran, 759 F.2d 777, 782 (9th Cir.1985), cert. denied, 474 U.S. 1102, 106 S.Ct. 885, 88 L.Ed.2d 920 (1986). Second, they must show that the delay, when balanced against the prosecution's reasons for it, offends those "fundamental conceptions of justice which lie at the base of our civil and political institutions." See Lovasco, 431 U.S. at 790, 97 S.Ct. at 2049 (quoting Mooney v. Holohan, 294 U.S. 103, 112, 55 S.Ct. 340, 341, 79 L.Ed. 791 (1935)); Moran, 759 F.2d at 781-82.

We review for abuse of discretion the court's denial of the motions to dismiss. United States v. Wallace, 848 F.2d 1464, 1470 (9th Cir.1988); United States v. Rogers, 722 F.2d 557, 561 (9th Cir.1983), cert. denied, 469 U.S. 835, 105 S.Ct. 129, 83 L.Ed.2d 70 (1984).

1. Actual Prejudice

"The defendant has a heavy burden to prove that a preindictment delay caused actual prejudice: the proof must be definite and not speculative, and the defendant must demonstrate how the loss of a witness and/or evidence is prejudicial to his case." Moran, 759 F.2d at 782 (citations omitted). Our cases reflect this heavy burden, as we frequently find actual prejudice lacking. See, e.g., Wallace, 848 F.2d at 1470; United States v. Valentine, 783 F.2d 1413, 1416-17 (9th Cir.1986). Here, we find the showing of prejudice to be slim.

First, the defendants assert that the alleged victims testified repeatedly that they could not remember certain events that occurred. Although the record is replete with examples of the girls' memory lapses when asked questions relating to the consumption of alcohol and other misconduct, we must question whether such lost testimony would qualify as prejudice necessary to establish a due process violation.

This court has "emphasized that protection from lost testimony generally falls solely within the ambit of the statute of limitations." Moran, 759 F.2d at 782; United States v. Pallan, 571 F.2d 497, 501 (9th Cir.), cert. denied, 436 U.S. 911, 98 S.Ct. 2249, 56 L.Ed.2d 411 (1978). Here, the record does not indicate how Billie and Bennally would have testified had their memories not dimmed. It does not show that the loss of their memories had meaningfully impaired defendants' abilities to defend themselves.

Second, they allege that loss of the rape kit prejudiced them because it would have established absence of dirt, grass or foreign substances in the victims' genital areas, absence of acid phosphotase on skin and clothing, and absence of stained or torn clothing. They note further that at trial Dr. Gloyd, who examined the girls, could testify only from her contemporaneous notes, and that because she preserved all physical evidence in the kit, she had no need to describe it separately in her notes.

The government responds that the jury convicted Sherlock and Charley of the lesser offense of assault with intent to commit rape. We agree that the rape kit would not likely have been exculpatory as to that crime. The record reveals that some exculpatory evidence from the kit, absence of semen in either girl, was preserved and argued at trial. Further, the unavailability of the rape kit did not necessarily result from the preindictment delay. See United States v. Mills, 641 F.2d 785, 789 (9th Cir.) (finding that even if the government had indicted defendants one month after the crime, the physical evidence could have been unavailable), cert. denied, 454 U.S. 902, 102 S.Ct. 409, 70 L.Ed.2d 221 (1981). Defendants could not establish that the government even had possession of the kit.

Finally, Charley alleges that the delay prevented him from serving his sentence concurrently with an earlier rape sentence, which would have reduced his total period of confinement. That argument is too speculative to establish actual prejudice. See Valentine, 783 F.2d at 1417. He offers no more than bare allegations that the delay deprived him of concurrent sentencing.

2. Reasons for the Delay

Before we may find a due process violation, Sherlock and Charley must show that the delay was caused by the government's culpability. United States v. Loud Hawk, 816 F.2d 1323, 1325 (9th Cir.1987); Moran, 759 F.2d at 783. The record...

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