United States v. Martin, 73-2166.

• Decision Date: 17 December 1973
• Docket Number: No. 73-2166.,73-2166.
• Citation: 489 F.2d 674
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Carl Douglas MARTIN, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

489 F.2d 674 (1973)

UNITED STATES of America, Plaintiff-Appellee, v. Carl Douglas MARTIN, Defendant-Appellant.

No. 73-2166.

United States Court of Appeals, Ninth Circuit.

December 17, 1973.

Federal Defenders of San Diego, Inc., Robert L. Boles, San Diego, Cal., for defendant-appellant.

William V. Smitherman, U. S. Atty., Michael B. Scott, Asst. U. S. Atty., Phoenix, Ariz., for plaintiff-appellee.

Before ALDRICH,^* ELY and CHOY, Circuit Judges.

CHOY, Circuit Judge:

Martin was convicted by a jury of illegally possessing heroin with intent to distribute in violation of 21 U.S.C. § 841(a)(1) (1970). We affirm.

Martin was arrested after the police, conducting a surveillance of his motel room, observed a car pull up to the motel, the driver enter Martin's room carrying a brown paper sack, and, shortly after, both leave with Martin then apparently carrying the paper bag. A search of the car revealed a quantity of heroin under the front seat and more heroin concealed in a brown paper bag underneath the back seat. The driver of the car, Albertico Salazar, was eventually indicted along with appellant. Charges against Salazar were later dropped, however, in return for his testimony at trial—testimony which indicated a narcotics transaction had taken place between Martin and Salazar. A third occupant of the car, a young Mexican alien, was released after it was determined that he was not involved in the transaction. Upon his release the boy apparently returned to Mexico.

Attempted Coverup

At trial Salazar, through an interpreter, related that appellant had told him that he should "take the blame on this charge because he (appellant) was hot, and he was on parole". Appellant argues that this is inferentially evidence of his past crimes which is inadmissible as part of the government's case in chief. It is true that normally the prosecution may not initially attack a defendant's character. See 1 Wigmore, Evidence § 57 (3d ed. 1940). However, reputation evidence, including evidence of past crimes, is admissible, as an exception to this rule, where "the evidence has probative force relevant to intent or motive, design, knowledge, identity, or habits. . . ." Smith v. Rhay, 419 F.2d 160, 164 (9th Cir. 1969). See generally 2 Wigmore, Evidence §§ 276, 278 (3d ed. 1940). For example, in Hass v. United States, 31 F.2d 13 (9th Cir.), cert. denied, 279 U.S. 865, 49 S.Ct. 480, 73 L.Ed. 1003 (1929), a witness testified that the defendant, who was charged with possession of opium, had attempted to assault him shortly before the trial. The testimony was held admissible "because it had some tendency to connect the appellant with the commission of the offense. . ." Hass v. United States, 31 F.2d at 15. Similarly, here the statement as to appellant's attempted coverup, and the reasons for it, are an acknowledgement of guilt. The statement that he was "hot" and on parole, while not itself a declaration of the coverup scheme, indicates why Martin was asking Salazar to take the blame and is thus part and parcel of the incriminating statement.

Martin argues that Salazar's testimony on this point is hearsay since the alleged admission was related to Salazar by a fellow prisoner who acted as an interpreter. Viewing the evidence, as we must, in a light most favorable to the government, see Glasser v. United States, 315 U.S. 60, 80, 62 S.Ct. 457, 86 L.Ed. 680 (1942), it appears that Salazar was capable of understanding enough English to gather the purport of Martin's statement. It was not hearsay because another inmate also translated it.

Release of Passenger

Prior to the trial, Martin moved for an order requiring the goverment to disclose the name of the third occupant of the car, the Mexican boy. A customs agent, James Miller, the only person to testify at the hearing on this motion, said that he was unable to recall or discover the boy's name. Based on this, the court denied the motion. Martin contends that the failure of the government to at least record the witness' name is a denial of due process.

While it might be a denial of due process for the government to fail to record the identity of an important witness where there are no other means available to learn that person's identity, cf. United States v. Mendez-Rodriguez, 450 F.2d 1 (9th Cir. 1971), this is not such a case. At the close of the pretrial hearing, the judge suggested that Martin's counsel attempt to learn the boy's identity from Salazar or his attorney. At trial, both Salazar and a local police officer testified as to the missing passenger's name. Martin's counsel did not request time to bring the boy to testify, presumably having learned the boy's identity and then having discovered his testimony would be of no help. In light of this, it cannot be said the government's failure was a denial of due process.

Assistance of Counsel

Martin next claims that he was denied effective assistance of counsel. To establish such a claim, a party must demonstrate that counsel's conduct of his case was so lacking in professional skill as to reduce the trial to a farce or a mockery of justice. See, e. g., United States v. Valenzuela-Mendoza, 452 F.2d 773, 774 (9th Cir. 1971). Appellant points to three instances of alleged misjudgment which, it is said, prove trial counsel's total lack of diligence in this case.

First, Martin complains of his counsel's withdrawal of a motion to suppress the heroin seized in the search of Salazar's automobile. This, however, falls far short of constituting ineffective assistance of counsel: it was a reasonable decision in the face of the fact that, as counsel admitted, there was almost certainly probable cause to search the vehicle without a warrant.

Second, Martin asserts that counsel was remiss in failing to object to certain of the trial court's instructions regarding the criminal standard of proof. The court's instructions contained two statements which have been disapproved in this circuit.¹ Yet in both cases in which such statements were criticized, this court found their inclusion was not reversible error under the circumstances because the instructions as a whole conveyed a proper notion of the standard of guilt. See United States v. Clay, 476 F.2d 1211, 1215 (9th Cir. 1973); United States v. Cummings, 468 F.2d 274, 280 (9th Cir. 1972). The same is true of the instructions here. Therefore, trial counsel's failure to object does not demonstrate the sort of incompetency necessary for reversal.

Third, Martin points to the failure of his attorney to offer a special cautionary instruction on the reliability of the accomplice, Salazar.² However, the issue of Salazar's credibility was pursued in a number of ways; counsel attacked his credibility on cross examination; the testimony of a fellow inmate, called as a witness for Martin, tended to undercut Salazar's version of events; and in final argument counsel strenuously argued that the accomplice's testimony was suspect. Since appellant's attorney actively pursued the reliability issue, we cannot say the failure to offer the cautionary instruction represents—even in combination with the other claimed misjudgments—such malfeasance that appellant was denied effective assistance of counsel.³Compare Brubaker v. Dickson, 310 F.2d 30, 38-39 (9th Cir. 1962), cert. denied, 372 U.S. 978, 83 S.Ct. 1110, 10 L.Ed.2d 143 (1963) (total failure to present critical defense amounts to denial of counsel).

Stipulation of Facts

Finally, the government and Martin's attorney agreed to stipulate as to the substance found in the car and as to its chain of custody. Appellant argues that the record must affirmatively reveal, as it does not, that he personally waived his constitutional right to confront witnesses by consenting to the stipulation. This is not an area where counsel is not permitted to waive his client's rights. See, e. g., Wilson v. Gray, 345 F.2d 282, 286 (9th Cir.), cert. denied, 382 U.S. 919, 86 S.Ct. 288, 15 L.Ed.2d 234 (1965). We consider the matter one of degree, based perhaps upon the importance of the testimony and the likelihood of overcoming it if presented in court. It might well have been advantageous trial tactics not to dispute the indisputable. In any case the agreement was recited in open court while the appellant was present. If he had reservations about the stipulation, he could have made them known...