UNITED STATES оf 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.
819 F.2d 221
Mahan‘s second contention is that an employee who is totally and permanently disabled is eligible for REPP benefits under the proviso in clause (3) of section 208(a) irrespective of whether the employee meets the other requirements of section 208(a). In interpreting the provisions of the Redwood Act we are mindful of the requirement of section 213(f) that in all cases where two or more constructions of the language of the Act are reasonable we must apply that construction which is most favorable to the employee. Kirby v. Donovan, 727 F.2d at 871. Mahan‘s interpretation of clause (3), however, is unreasonablе and must be rejected.
Clauses (1), (2) and (3) of section 208(a) are independent. Each clause must be satisfied for an employee to be eligible for severance benefits. See Baum v. Brock, 786 F.2d 938, 938-39 (9th Cir.1986). Clause (3) is unambiguous. The proviso therein applies only to that clause and does not create eligibility for severance benefits by prеcluding the operative effect of clauses (1) and (2). Rather, the proviso in clause (3) was added to ensure that an employee who had already met the other requirements of section 208(a) would not be disqualified because he had become disabled after being laid off. The interpretation urged by Mahan would oрerate to create automatic eligibility for all workers unemployed solely because of a disability. The Redwood Act “was not intended to provide an alternative form of disability compensation.” Kirby v. Donovan, 727 F.2d at 872.
The decision of the Deputy Under Secretary to deny benefits is AFFIRMED.
Sanford Svetcov, San Francisco, Cal., for plаintiff-appellee.
Before POOLE and BOOCHEVER, Circuit Judges, and DIMMICK, District Judge.*
Appellant Malcolm Washington (“Washington“) appeals his conviction of first degree murder in violation of
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. Armstrоng 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 dishevеled. 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. Thеy 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 shоt 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 Wаshington‘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).
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 thе 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 prosрective 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 hеr, pursuant to
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. Mеmories 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 bеcome 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
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 evidеnce 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” appearance; 3) that there was an odor of alcohol on him after the shooting, his eyes were red and he had soiled his pants; and 4) that four empty beer bottles and a wine glass were found in the vehicle which he drove.
There is no testimony, from medical experts or otherwise, suggesting that Washington generally lacked the mental capаcity to form specific intent. No one identified Washington as drinking or as appearing to be intoxicated before or at the time of the shootings. To the contrary, one officer testified that immediately after the shootings Washington was cooperative, responsive, and followed all of the officer‘s commаnds, apparently without difficulty. That officer testified that he smelled alcohol on Washington‘s person while patting him down, but did not state that he smelled any alcohol on Washington‘s breath. Finally, though Washington‘s actions before and during the episode suggest strong emotional disturbance, they do not demonstrate intoxication. Reviewing the сourt‘s rulings on the whole, we conclude that the evidence in the record simply does not support Washington‘s lack of intent and intoxication defenses, and the refusal to give the disputed instructions was correct.
3) MALICE AFORETHOUGHT INSTRUCTION
Defendant challenges as constitutional error under Sandstrom v. Montana, 442 U.S. 510, 99 S.Ct. 2450, 61 L.Ed.2d 39 (1979), a jury instruction reading: “Use of a weapon or other instrument in a way that causes death is evidence of malice aforethought.” This instruction is taken verbatim from the Manual of Model Jury Instructions for the Ninth Circuit, § 8.11A (1985).
A jury instruction is constitutionally defective if it creates a mandatory presumption, either conclusive or rebuttable, which shifts from the prosecution the burden of proving beyond a reasonable doubt an essential element of a criminаl offense. Sandstrom v. Montana, 442 U.S. 510, 99 S.Ct. 2450, 61 L.Ed.2d 39 (1979). In contrast, an instruction advising of a permissive inference as to an essential element does not violate due process unless “the suggested conclusion is not one that reason and common sense justify in light of the proven facts before the jury.” Francis v. Franklin, 471 U.S. 307, 314-315, 105 S.Ct. 1965, 1971, 85 L.Ed.2d 344 (1985).
The instruction in the instant case involves only a permissive inference. Advising the jury that it may treat the use of a deadly weapon as evidence of malice aforethought is not the same as requiring it to presume or infer malice aforethought
Moreover, when we review the challenged instruction in the context of the instructions as a whole, Francis, 471 U.S. at 315, 105 S.Ct. at 1971, it is even more apparent from an accompanying instruction that the inference to be drawn is permissive:
If it is shown that the defendant used a deadly weapon in the commission of a homicide, then you may find, from the use of such weapon, in the absence of explanatory or mitigating circumstances, the existence of the malice which is an essential element of the offense. You are not obliged to so find, however.
This instruction has been upheld against constitutional challenge. Vallez, 653 F.2d at 406. Taken as a whole, the instructions did not require the jury to infer malice aforethought from the use of a deadly weapon. The challenged instruction was not erroneous.
4) ASSAULT CHARGE INSTRUCTIONS
In reviewing jury instructions, one consideration is whether as a whole they were misleading or inadequate to guide the jury‘s determination. United States v. Pazsint, 703 F.2d 420, 424 (9th Cir.1983).
Washington was charged with assaulting Major Owens with a dangerous weapon in violation of
We have said that a conviction should not rest on ambiguous and equivocal jury instructions on a basic issue. United States v. Bagby, 451 F.2d 920, 927 (9th Cir.1971). Whether Washington intended to do Major Owens bodily harm is a basic issue, since he cannot properly be convicted of the crime charged absent such intent; and we find it difficult to imagine jury instructions which are more ambiguous and equivocal than these. The government invites us to uphold the assault conviction on the basis that the giving of these misleading and erroneous jury instructions constituted harmless error. Cf. Rose v. Clark, --- U.S. ---, 106 S.Ct. 3101, 92 L.Ed.2d 460 (1986) (conviction may be upheld despite jury instruction which unconstitutionally created presumption of malice, if this Sandstrom violation was harmless error). Assuming, without deciding, that аpplication of the harmless error doctrine is appropriate in this context, we are unable to confidently conclude that, on the whole record, these seriously erroneous jury instructions were harmless beyond a reasonable doubt. Id. at 3105. Therefore, we reverse and remand the assault conviction.
5) PRESENTENCE REPORT
Since we reverse and remand for new trial on both the murder and assault сonvictions, we need not address Washington‘s claim that the district court failed to comply with
REVERSED and REMANDED.
BOOCHEVER, Circuit Judge, concurring:
I believe there was sufficient evidence of intoxication to require giving the requested instructions on diminished capacity and voluntary intoxication. See United States v. Polizzi, 801 F.2d 1543, 1549 (9th Cir.1986).