U.S. v. Washington, 85-1143

• Citation: 819 F.2d 221
• Decision Date: 05 June 1987
• Docket Number: No. 85-1143,85-1143
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Malcolm Lee WASHINGTON, Defendant-Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

Page 221

819 F.2d 221

UNITED STATES of America, Plaintiff-Appellee, v. Malcolm Lee WASHINGTON, Defendant-Appellant.

No. 85-1143.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted March 11, 1987.

Decided June 5, 1987.

Daniel F. Cook, San Jose, Cal., for defendant-appellant.

Sanford Svetcov, San Francisco, Cal., for plaintiff-appellee.

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

Before POOLE and BOOCHEVER, Circuit Judges, and DIMMICK, District Judge. ^*

POOLE, Circuit Judge:

Appellant Malcolm Washington ("Washington") appeals his conviction of first degree murder in violation of 18 U.S.C. Sec. 1111, and of assault with a deadly weapon in violation of 18 U.S.C. Sec. 113(c). Washington seeks a new trial, alleging that the trial court erred by: 1) refusing to allow or to himself put questions to prospective jurors at voir dire about whether any were acquainted with any of the government's witnesses; 2) refusing to instruct on diminished capacity and voluntary intoxication defenses; 3) giving erroneous instructions to the jury that use of a deadly weapon is evidence of malice aforethought; 4) giving an erroneous general intent instruction to the jury for the specific intent crime of assault; and 5) failing to comply with the requirements of Fed.R.Crim.P. 32(c)(3)(D) at sentencing. We reverse both convictions and remand for a new trial.

FACTS

On March 12, 1985, a jury found Washington guilty of the first degree murder of Maggie Armstrong and the assault of Major Joel M. Owens.

Washington and Armstrong lived together briefly in late August and September of 1984 in the home of Diane Bismallah, along with Armstrong's son. Bismallah asked Washington to move out the latter part of September. On September 27, 1984, Washington purchased .38 caliber ammunition. On September 30, 1984, he moved to a nearby motel. Subsequently, Washington was heard to make angry and threatening statements to Armstrong.

An entry on Washington's calendar on October 3, 1984 showed "E.T.S.," meaning "end of tour of service" and the statement, "What does one say about Malcolm Lee Washington? Was he bad, misused, victimized or just crazy? Or could it have been--?" along with his birthdate.

The government and Washington disagree as to the weight of any evidence of fear exhibited by Armstrong prior to the shooting. She did not sleep at Bismallah's Sunday and did not go to work Monday. Armstrong had made plans to move back to Chicago on October 5. In the meantime, however, she had permitted her son to stay at motels with Washington.

At approximately 7 a.m. on October 3, 1984, Washington arrived at the Fort Ord I.D. Card Office where Armstrong worked. Washington was seen pacing around the office and appeared disheveled. Armstrong arrived about 7:15 a.m. As it developed, the telephone wires to her office had been cut. There was no conclusive proof that a knife owned by Washington had made the cuts, although the cuts were "consistent" with cuts made by his knife.

Washington and Armstrong were seen walking together near her office between 7:15 and 7:30 a.m. They had moved about 900 feet when Washington pulled out a gun and shot Armstrong. She fell after the first shot, and Washington fired four more bullets into her body. Death was instantaneous. Washington then fled with his gun and was pursued for several short blocks by Major Owens in his car. When Owens attempted to block his escape, Washington stepped in front of the car and shot Owens through the windshield, wounding him in the arm.

A crowd of approximately 75 to 100 people had gathered and began to pursue Washington. He ran to the Personnel Control Office and surrendered to Major Jack Day, turning over his gun. Day smelled alcohol on Washington. Witnesses testified that Washington had no trouble walking. Four beer cans were found in Washington's car.

DISCUSSION

1) VOIR DIRE

In the jury selection process, the court conducted the entire examination. Over objection, the court refused to ask whether jurors knew any of the government's witnesses. We review the sufficiency of voir dire questions for abuse of discretion. United States v. Feldman, 788 F.2d 544, 556 (9th Cir.1986), cert. denied, --- U.S. ----, 107 S.Ct. 955, 93 L.Ed.2d 1003 (1987).

"[T]he trial judge [may] insist upon conducting a voir dire examination, but if he does so, he must exercise a sound judicial discretion in the acceptance or rejection of supplemental questions proposed by counsel. Discretion is not properly exercised if the questions are not reasonably sufficient to test the jury for bias or partiality." United States v. Baldwin, 607 F.2d 1295, 1297 (9th Cir.1979). In Baldwin, this court found reversible error where the trial court refused to ask prospective jurors two questions: 1) whether they would be biased in favor of testimony of law enforcement officers, and 2) whether they were acquainted with any of the government's witnesses. The procedure at voir dire, the court reasoned, did not "create any reasonable assurances that prejudice would be discovered if present." Id. at 1298.

The Baldwin court's ruling was based on the cumulative effect of the trial court's refusal to ask both questions. The court found that as a result of these refusals, the number of meaningful peremptory challenges or challenges for cause were necessarily reduced, and that this inhibition of the right to challenge was prejudicial to the defendant. In reaching its conclusion, the court relied on Cook v. United States, 379 F.2d 966 (5th Cir.1967), which held that a refusal to question prospective jurors regarding their acquaintance with a government witness was reversible error. We have also said that "[t]he defendant ha[s] a right to have the question [as to prospective jurors' acquaintance with witnesses] answered to afford him an opportunity to exercise his peremptory challenges intelligently." Baldwin, 607 F.2d at 1297. This reasoning applies to the instant case. The trial judge's refusal to ask or permit to be asked of the prospective jurors any questions concerning knowledge of any of the government's witnesses, as requested by counsel, was error.

The government contends, however, that reversal is not required and suggests that we remand for a hearing to determine whether any of the jurors were, in fact, acquainted with any of the government's witnesses, citing United States v. Studley, 783 F.2d 934 (9th Cir.1986).

In Studley, the defendant challenged the district court's refusal to allow her, pursuant to 28 U.S.C. Sec. 1867(f), to inspect records of the jury selection process. Although recognizing this refusal as error, the Studley court stated, following Test v. United States, 420 U.S. 28, 95 S.Ct. 749, 42 L.Ed.2d 786 (1975), that "[w]here a motion to inspect is erroneously denied * * * reversal is not required. Instead, the case should be remanded to permit inspection. If inspection reveals grounds upon which to challenge the jury selection, a defendant may file a motion, such as for new trial, under [28 U.S.C.] Sec. 1867(a). * * * The court shall then grant the Sec. 1867(a) motion if it determines that the jury selection procedure was prejudicial." Studley, 783 F.2d at 938 (citations omitted).

Studley and Test are distinguishable from the case at bar. The error in those cases, denial of a motion to inspect jury records for prejudice, was curable by reviewing the records themselves to determine if prejudice existed. Where remand for review of records will reliably reveal any prejudice, the need for reversal is obviated. In contrast, a remand to question jurors more than two years after trial is less certain to expose potential prejudice. Memories fade and biases change over time. In addition, the reliability of the jurors' responses as to whether they were acquainted with the government witnesses may be compromised by their verdict; at this late date a juror might understandably be embarrassed to admit knowing a witness when that knowledge, though not then acknowledged, has now become crucial. The guarantee of an impartial jury is far too central to our concept of a fair trial for determination of whether a defendant has been prejudiced by a partial or biased jury to be dependent upon the vagaries of such a procedure.

Further, manifest difficulties appear in reconstituting a jury so long after trial. Whereas jury records such as those in Studley are easily obtained and reviewed, locating and recalling twelve jurors after more than two years is more difficult. Moreover, if some jurors have moved, or cannot be reached or have died, reversal would be required in any case. These considerations, while pragmatic, distinguish this case from Test and Studley, and weigh heavily in our decision against remand. For these reasons, particularly because of the lapse of time, we follow the precedent of Baldwin, rather than Test and Studley, and hold that the error requires reversal.

2) DIMINISHED CAPACITY AND VOLUNTARY INTOXICATION INSTRUCTIONS

Washington's proposed jury instructions on diminished capacity and voluntary intoxication with respect to the specific intent crimes charged were rejected.

The district court must give an instruction regarding any legitimate theory of defense that is supported by the evidence, and a failure to do so is reversible error. United States v. Polizzi, 801 F.2d 1543, 1549 (9th Cir.1986). Further, a defendant is entitled to an instruction concerning his theory of the case if the theory is legally sound and evidence in the case makes it applicable, even if the evidence is weak, insufficient, inconsistent, or of doubtful credibility. United States v. Doubleday, 804 F.2d 1091, 1095 (9th Cir.1986), cert. denied, --- U.S. ----, 107 S.Ct. 1628, 95 L.Ed.2d 201 (1987).

Washington seeks to support his claims of diminished capacity and voluntary intoxication on the following evidence: 1) his disheveled appearance; 2) his "lost" and "confused"...