JOHNSON v. UNITED STATES

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Docket Number

No. 21145.

Attorney(S)

Maurice M. Stern, R. Lamar Couser, Tucson, Ariz., for appellant. William Copple, U.S. Atty., John L. Augustine, Asst. U.S. Atty., Phoenix, Ariz., for appellee.

Judges

Stanley Nelson Barnes
Frederick George Hamley
William Matthew Byrne

Acts

Crimes And Criminal Procedure — Indians — Crimes — Offenses Committed Within Indian Country
Judiciary And Judicial Procedure — Courts Of Appeals — Jurisdiction And Venue — Final Decisions Of District Courts

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Smart Summary

Factual and Procedural Background

Appellant Calos Ortiz Johnson, an American Indian, was convicted (with a co-defendant who did not appeal) of breaking and entering at nighttime the White River Trading Post located within the Fort Apache Indian Reservation in Arizona, an offense prosecuted under 18 U.S.C. § 1153. Under Arizona law, burglary includes entering a building or shop with intent to commit theft or any felony, and nighttime burglary is first degree burglary. The evidence at trial proved the crime, and this appeal is before the United States Court of Appeals for the Ninth Circuit with jurisdiction under 28 U.S.C. § 1291.

Legal Issues Presented

Whether the government witness's statement that the defendant was in the witness's office because he was "under arrest 'on another charge'" constituted reversible error (i.e., whether it was plain error or harmless error).
Whether the trial court erred in refusing Instruction No. 4, a proposed instruction asserting no criminal responsibility if the acts were done in fear of danger to the actor's life (i.e., whether the evidence supported giving a duress/fear-of-life instruction), and whether failure to comply with the Court of Appeals' Rule of Court 18(d) affected review.

Arguments of the Parties

Appellant's Arguments

The appellant alleged two errors on appeal: (1) a government witness's unsolicited statement that the defendant was under arrest on another charge when asked why the defendant was in the witness's office on a particular day; and (2) the trial court's refusal to give Instruction No. 4, which would have instructed the jury that there is no criminal responsibility if the acts were done in fear of danger to the actor's life.

Appellee's Arguments

The appellee complied with the appellate rule by setting out the refused instruction "totidem verbis" in the record. The opinion also indicates the appellee pointed to procedural defects (appellant's failure to comply with Rule of Court 18(d)) as a reason the court need not consider the refused instruction on appeal.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Neal v. United States, 342 F.2d 730 (9th Cir. 1965)	Principle distinguishing "plain error" from "harmless error" under Rule 52, Fed.R.Crim.P.	The court applied this authority in concluding that the witness's remark about the defendant being under arrest on another charge was not plain error and was, in view of the overwhelming evidence and admissions, harmless error.

Court's Reasoning and Analysis

The court addressed the two alleged errors in turn.

First, regarding the government witness's statement that the defendant was "under arrest 'on another charge,'" the court observed that defense counsel made no objection or motion to strike at trial. The court then evaluated the remark in context and considered three points: (a) the evidence of the defendant's guilt was overwhelming; (b) the defendant admitted entering the premises; and (c) the defendant admitted a prior felony conviction. Balancing these circumstances, and applying Rule 52 of the Federal Rules of Criminal Procedure together with Ninth Circuit precedent (Neal v. United States), the court concluded the incident did not constitute "plain error" and was instead "harmless error."

Second, on the refused Instruction No. 4 (which would have instructed that there is no criminal responsibility where acts were done in fear of danger to the actor's life), the court first noted a procedural defect: appellant failed to comply with the Court of Appeals' Rule of Court 18(d), relieving the court of any obligation to consider the claimed instructional error. The court nonetheless observed that the appellee had included the refused instruction verbatim in the record.

Substantively, the court explained the legal standard for giving such an instruction: it is proper only where there is competent and substantial evidence that threats or menaces created in the defendant's mind a fear of imminent and immediate danger that his life would be endangered. The court reviewed the record and found that the only arguable threat was the codefendant's act of "pulled his chest out." The defendant's explanations for his conduct were drunkenness, illness, and fear of his partner; his testimony reflected uncertainty ("maybe I feared I guess, I feared my companion") and he stated he was "persuaded" to go into the store rather than forced. The court concluded there was no evidence sufficient to justify instructing the jury on the claimed defense, and thus the trial court was under no obligation to give the proffered instruction.

Holding and Implications

Holding: Affirmed.

Implications: The Ninth Circuit affirmed the appellant's conviction. The direct consequence is that the conviction and its judgment stand as affirmed on appeal. The opinion does not purport to establish a new rule of law; it applies existing procedural and substantive standards (including Rule 52 and the requirement of competent and substantial evidence for a duress/fear-of-life instruction) to the record and finds no reversible error.

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Calos Ortiz JOHNSON, Appellant, v. UNITED STATES of America, Appellee.

PER CURIAM.

Appellant, an American Indian, was convicted (with a co-defendant who has not appealed) of breaking and entering at nighttime the White River Trading Post, located within the territorial confines of the Fort Apache Indian Reservation in Arizona. ( 18 U.S.C. § 1153.) Under the law of Arizona, burglary is defined as "entering a building * * * [or] shop * * * with intent to commit grand or petty theft, or any felony * * *." Ariz.Rev.Stat.Ann., § 13-302, subsec. A: "Burglary committed in the nighttime is burglary of the first degree, * * *." Ariz.Rev.Stat.Ann., § 13-302, subsec. B. Cf. § 13-301. The evidence here introduced proved that crime. We have jurisdiction on appeal. ( 28 U.S.C. § 1291.)

"§ 1153. Offenses committed within Indian country
Any Indian who commits against the person or property of another Indian or other person any of the following offenses, namely, murder, manslaughter, rape, incest, assault with intent to kill, assault with a dangerous weapon, arson, burglary, robbery, and larceny within the Indian country, shall be subject to the same laws and penalties as all other persons committing any of the above offenses, within the exclusive jurisdiction of the United States.
As used in this section, the offense of rape shall be defined in accordance with the laws of the State in which the offense was committed, and any Indian who commits the offense of rape upon any female Indian within the Indian country, shall be imprisoned at the discretion of the court.
As used in this section, the offense of burglary shall be defined and punished in accordance with the laws of the State in which such offense was committed. [As amended May 24, 1949, c. 139, § 26, 63 Stat. 94.]"

Two errors are alleged. One relates to the statement of a government witness respecting a conversation with defendant on a certain date. In reply to a question by the judge as to why the defendant was in the witness' office on that particular day, the witness answered defendant was under arrest "on another charge."

No objection or motion to strike was made by counsel for defendant. In view of (a) the overwhelming evidence of defendant's guilt, and (b) his admission of the fact of his entry into the premises, and (c) his admitted prior felony conviction, we find in this incident no "plain error," but mere "harmless error." Rule 52, Fed.R.Crim.P. Neal v. United States, 342 F.2d 730 (9th Cir. 1965).

Appellant's second point is of no merit. It approaches, if it does not achieve, the ludicrous. It is the refusal to give Instruction No. 4.

First, appellant has failed to comply with our Rule of Court 18(d). For that reason we are under no obligation to consider it. However, appellee has, as the appellant should have, set out the refused instruction in totidem verbis.

Second, appellant's requested instruction was to the effect that there is no criminal responsibility if the acts were done in fear of danger to the actor's life. Such an instruction is proper only where there is evidence which is both competent and substantial in amount which could establish "threats or menaces which create in his [defendant's] mind a fear of imminent and immediate danger * * * that his life will be endangered." (Defendant's Proposed Instruction No. 4, C.T. p. 3, emphasis added.) The only threat or menace was that codefendant Moody "pulled his chest out." Defendant explained his conduct by his drunkenness, his illness and his fear of his partner. He said, " maybe I feared I guess, I feared my companion." (R.T. p. 79, emphasis added.) He also testified that he was not forced to go into the store, but "was persuaded." (R.T. p. 81.) Since there was no evidence which could justify the jury in utilizing this statement of the law, the court was under no obligation to give the proffered instruction.

Finding no error, we affirm.