United States v. Chee, 24649.

• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)
• Citation: 422 F.2d 52
• Docket Number: No. 24649.,24649.
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Sammy Becenti CHEE, Defendant-Appellant.
• Decision Date: 16 February 1970

422 F.2d 52 (1970)

UNITED STATES of America, Plaintiff-Appellee,
v.
Sammy Becenti CHEE, Defendant-Appellant.

No. 24649.

United States Court of Appeals Ninth Circuit.

January 20, 1970.

Rehearing Denied February 16, 1970.

422 F.2d 53

Lawrence C. Cantor (argued), Phoenix, Ariz., for appellant.

Lawrence Turoff (argued), Asst. U. S. Atty., Richard K. Burke, U. S. Atty., Phoenix, Ariz., for appellee.

Before BARNES, DUNIWAY and ELY, Circuit Judges.

DUNIWAY, Circuit Judge:

Chee and one George Roanhorse were charged with assault with a deadly weapon in violation of 18 U.S.C. § 1153¹ and Ariz.RS § 13-249, subsec. A and assault with intent to commit rape in violation of 18 U.S.C. § 1153 and Ariz.RS § 13-252. In a separate trial Chee was acquitted of the first charge and found guilty of the second charge. He appeals.

At the trial the victim testified that she attended a Squaw Dance on July 31, 1967 at Klageto, Arizona and that she was attacked there by Roanhorse and Chee. She testified that she had been forced to leave her wagon and to accompany her aunt and uncle. Her aunt and uncle began to argue and she feared her uncle would strike her aunt. She attempted to intercede and her uncle struck her in the stomach. The aunt and uncle then wandered away leaving her alone. After a while, she decided to return to the wagon. On her way back she saw Roanhorse, whom she knew, noticed he had been drinking and ran from him. As she ran, Chee appeared in front of her and grabbed her and held her until Roanhorse caught up with them. Roanhorse reviled her for marrying a white man and said "we are going to rape you." Chee was holding her at the time.

422 F.2d 54

The two men then removed her pants and attempted to remove her underpants. She was struck by both men. She was stabbed in the chest and back by Roanhorse, and each of the men attempted to get on top of her and to undress themselves but were unsuccessful because of her struggles. She suffered a dislocation and fracture of the cervical region of the spine which left her paralyzed in all four limbs. The victim's story was partly corroborated by her stepsister

Chee testified that his only contact with the victim was when he and Roanhorse attempted to intercede in a fight between the victim and her uncle.

Chee makes the following assignment of errors.

1. It was error to admit the hearsay statement of George Roanhorse.

2. Reference to another bad act of the defendant should have been cause for a mistrial.

3. Insufficiency of the evidence.

4. Inconsistent verdicts.

5. There was improper argument by the prosecutor.

1. Hearsay evidence.

Chee argues that it was error to allow the victim to testify to Roanhorse's statement, "We are going to rape you." He contends that allowing this statement violated the rule set down in Bruton v. United States, 1968, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed. 476, in that Roanhorse was not present at the trial and was therefore not subject to cross-examination. This statement was made in Chee's presence and during the actual joint commission of the offense. It was properly admissible as part of the res gestae. Wilson v. United States, 9 Cir., 1963, 313 F.2d 317, cert. denied, 1963, 374 U.S. 848, 83 S.Ct. 1910, 10 L.Ed.2d 1068; United States v. Annunziato, 2 Cir., 1961, 293 F.2d 373; Jackson v. United States, 1966, 123 U.S.App.D.C. 276, 359 F.2d 260; cf. A.L.I. Model Code of Evidence, Rules 508(b), 512(a).

2. Reference to another bad act of the defendant.

When the victim was testifying she was asked how long she had known Chee. She responded, "Well * * * the first time I really have heard of his name and when I saw him was at the time he shot my * * *." At this point...