U.S. v. Tsinnijinnie, No. 78-3522

CourtUnited States Courts of Appeals. United States Court of Appeals (9th Circuit)
Writing for the CourtBefore TRASK and GOODWIN, Circuit Judges, and NIELSEN; NIELSEN
Citation601 F.2d 1035
Parties4 Fed. R. Evid. Serv. 585 UNITED STATES of America, Plaintiff-Appellee, v. Norman TSINNIJINNIE, Defendant-Appellant.
Decision Date29 June 1979
Docket NumberNo. 78-3522

Page 1035

601 F.2d 1035
4 Fed. R. Evid. Serv. 585
UNITED STATES of America, Plaintiff-Appellee,
v.
Norman TSINNIJINNIE, Defendant-Appellant.
No. 78-3522.
United States Court of Appeals,
Ninth Circuit.
June 29, 1979.
Rehearing Denied Aug. 27, 1979.

Page 1036

Michael L. Piccarreta, Phoenix, Ariz., argued, for defendant-appellant; Susan Wintermute, Asst. Federal Public Defender, Phoenix, Ariz., on brief.

Daniel R. Drake, U. S. Atty., argued and on brief, for plaintiff-appellee.

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

Before TRASK and GOODWIN, Circuit Judges, and NIELSEN, District Judge. *

NIELSEN, District Judge:

Norman Tsinnijinnie appeals a judgment of conviction of voluntary manslaughter (18 U.S.C. § 1153). The primary issue on appeal is whether Tsinnijinnie's privilege to preclude his spouse from testifying against him was violated by a third person relating an out-of-court utterance by Tsinnijinnie's wife. In addition, he claims the trial judge erred by excluding expert testimony, by admitting evidence of a prior altercation, by explaining to the jury why appellant's wife did not testify and by declining to give a jury instruction that appellant had requested.

We hold that the marital privilege was not violated by the admission of the out-of-court statement of the wife, and find no error in the admission or exclusion of evidence or the jury instructions.

Tsinnijinnie was indicted for second degree murder of his mother-in-law, Florence Dejolie, and attempted murder of his wife, Rena Tsinnijinnie. Tsinnijinnie and his wife are Navajo Indians, as was the victim, and the offense occurred in Indian country, thus making the acts a federal crime (18 U.S.C. § 1153). The Government alleged that Tsinnijinnie had driven his pickup truck to his mother-in-law's hogan, where he found her and his wife. He argued briefly with them, threatening to kill his mother-in-law, Florence, and then rammed his truck into the hogan. Florence fled and Tsinnijinnie backed the truck away from the hogan and drove down an adjacent road where he struck and killed Florence. His defense was that Florence had fallen down while fleeing and had been run over accidentally.

Page 1037

The Government dismissed the attempted murder count because there was confusion over whether federal statutes make it a crime when committed in Indian country. (18 U.S.C. §§ 1153, 1113, 1152.) Tsinnijinnie was tried on the second degree murder charge and the jury convicted him of voluntary manslaughter, a lesser included offense.

MARITAL PRIVILEGE

Tsinnijinnie invoked the "anti marital facts privilege" to preclude his wife from testifying against him. However, another witness, Harold Dejolie, testified that moments after the truck ran over the victim he heard Rena Tsinnijinnie exclaim, "He (Tsinnijinnie) ran over my mother." This statement fell within the excited utterance exception to the hearsay rule, but Tsinnijinnie contends that permitting Harold Dejolie to relate it violated the marital privilege.

Witnesses' privileges in federal courts are governed by Rule 501, Fed.R.Evid., which provides, in part, that privileges shall be "governed by the principles of the common law as they may be interpreted by the courts of the United States in the light of reason and experience." There are two privileges arising from the marital union recognized in federal courts: one for confidential communications, Blau v. United States, 340 U.S. 332, 71 S.Ct. 301, 95 L.Ed. 306 (1951); and another which precludes one spouse from testifying against the other absent a waiver, Hawkins v. United States, 358 U.S. 74, 79 S.Ct. 136, 3 L.Ed.2d 125 (1958). It is this latter privilege, commonly referred to as the anti marital facts privilege, that is involved here.

There is disagreement among courts and scholars on whether this spousal privilege should preclude a third person from relating an out-of-court statement made by a spouse. The Ninth Circuit has stated in dicta that the privilege does preclude such testimony. In Peek v. United States, 321 F.2d 934 (9th Cir. 1963), Cert. denied, 376 U.S. 954, 84 S.Ct. 973, 11 L.Ed.2d 973 (1964), an out-of-court statement the wife had made to an FBI agent was introduced against the husband through the agent's testimony. A panel of this Circuit noted that the marital privilege "includes the prohibition against a third person relating a statement made by one spouse against the other which that spouse would not be allowed to relate if called as a witness." Id. at 943. However, the privilege had been waived in Peek, so the language was merely dictum.

Similarly, Olender v. United States, 210 F.2d 795 (9th Cir. 1954), Cert. denied, 352 U.S. 982, 77 S.Ct. 382, 1 L.Ed.2d 365 (1957), and United States v. Price, 577 F.2d 1356 (9th Cir. 1978), state that the rule in this Circuit is that extrajudicial statements of one spouse cannot be introduced against the other spouse. Again, however, the language in both cases was wholly unnecessary to the holdings; in Olender there had been a waiver of the privilege and in Price the spouse's statements were admitted as admissions of a coconspirator.

The Fifth Circuit has followed the dictum from Peek And held that extrajudicial statements of a spouse cannot be introduced against the other spouse, Ivey v. United States, 344 F.2d 770 (5th Cir. 1965); United States v. Williams, 447 F.2d 894 (5th Cir. 1971). That Circuit reasons that permitting out-of-court statements to be introduced would undercut the marital privilege.

In addition, some of the more respected scholars have treated the question as an easy one, and concluded that hearsay statements are blocked by the privilege. Wigmore states:

"It can be argued that that which is privileged is the testimonial utterance in any form, by wife or husband, offered against the other. Hearsay statements oral or documentary are testimonial utterances. Hence, it would follow that they are equally privileged with testimony on the stand."

8 Wigmore on Evidence § 2232 (rev. McNaughton 1961).

Professor Wright reached the same conclusion:

Page 1038

"The rule applies not only to testimony by the spouse from the witness stand but also requires exclusion of out-of-court statements made by one spouse in writing or to a third person."

2 Wright, Federal Practice and Procedure § 405 at 87 (1969).

Despite these pronouncements, and the dictum from Peek, we do not believe the issue has been laid to rest in this Circuit. This panel is not bound by dicta from prior cases, Kastigar v. United States, 406 U.S. 441, 456, 92...

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69 practice notes
  • Ray v. Kernan, No. C 06-4556 SBA (pr).
    • United States
    • United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Northern District of California
    • January 22, 2009
    ...and what was refused and whether the given instructions adequately embodied the defendant's theory. See United States v. Tsinnijinnie, 601 F.2d 1035, 1040 (9th Cir. 1979), cert. denied, 445 U.S. 966, 100 S.Ct. 1657, 64 L.Ed.2d 242 The omission of an instruction is less likely to be prejudic......
  • Morales v. Noll, No. C 10-01199 EJD (PR)
    • United States
    • United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Northern District of California
    • May 14, 2012
    ...what was refused and whether the given instructions adequately embodied the Petitioner's defense theory. United States v. Tsinnijinnie, 601 F.2d 1035, 1040 (9th Cir. 1979).b. Analysis Petitioner argues that the trial court erred in using the standard instruction, CALCRIM No. 520, instead of......
  • People v. Lifrieri
    • United States
    • United States State Supreme Court (New York)
    • March 26, 1993
    ...in the trial context only and has limited application outside that context (id.; see also, United States v. Tsinnijinnie, 9th Cir., 601 F.2d 1035 [third party permitted at trial to testify to out-of-court utterance of privileged communication of defendant spouse]; and State v. Burden, 120 W......
  • State v. Bradshaw, Nos. 22302
    • United States
    • Supreme Court of West Virginia
    • March 27, 1995
    ...offered against the other where such statements are admissible under the hearsay doctrine. See, e.g., United States v. Tsinnijinnie, 601 F.2d 1035, 1037-39 (9th Cir.1979), cert. denied, 445 U.S. 966, 100 S.Ct. 1657, 64 L.Ed.2d 242 (1980) (marital privilege "should not be extended to bar a w......
  • Request a trial to view additional results
69 cases
  • Ray v. Kernan, No. C 06-4556 SBA (pr).
    • United States
    • United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Northern District of California
    • January 22, 2009
    ...and what was refused and whether the given instructions adequately embodied the defendant's theory. See United States v. Tsinnijinnie, 601 F.2d 1035, 1040 (9th Cir. 1979), cert. denied, 445 U.S. 966, 100 S.Ct. 1657, 64 L.Ed.2d 242 The omission of an instruction is less likely to be prejudic......
  • Morales v. Noll, No. C 10-01199 EJD (PR)
    • United States
    • United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Northern District of California
    • May 14, 2012
    ...what was refused and whether the given instructions adequately embodied the Petitioner's defense theory. United States v. Tsinnijinnie, 601 F.2d 1035, 1040 (9th Cir. 1979).b. Analysis Petitioner argues that the trial court erred in using the standard instruction, CALCRIM No. 520, instead of......
  • People v. Lifrieri
    • United States
    • United States State Supreme Court (New York)
    • March 26, 1993
    ...in the trial context only and has limited application outside that context (id.; see also, United States v. Tsinnijinnie, 9th Cir., 601 F.2d 1035 [third party permitted at trial to testify to out-of-court utterance of privileged communication of defendant spouse]; and State v. Burden, 120 W......
  • State v. Bradshaw, Nos. 22302
    • United States
    • Supreme Court of West Virginia
    • March 27, 1995
    ...offered against the other where such statements are admissible under the hearsay doctrine. See, e.g., United States v. Tsinnijinnie, 601 F.2d 1035, 1037-39 (9th Cir.1979), cert. denied, 445 U.S. 966, 100 S.Ct. 1657, 64 L.Ed.2d 242 (1980) (marital privilege "should not be extended to bar a w......
  • Request a trial to view additional results

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