United States v. Raymond Nelson Lopez

575 F.2d 681 UNITED STATES of America, Plaintiff-Appellee, v. Raymond Nelson LOPEZ, Defendant-Appellant. No. 76-2039. United States Court of Appeals, Ninth Circuit. Jan. 23, 1978. Rehearing Denied March 22, 1978. Jo Ann D. Diamos, Asst. Federal Public Defender, Tucson, Ariz., for defendant-appellant. Christopher L. Pickrell, Asst. U. S. Atty., Tucson, Ariz., for plaintiff-appellee. Appeal from the United States District Court for the District of Arizona. Before HUFSTEDLER and WALLACE, Circuit Judges, and WATERS, * District Judge. WALLACE, Circuit Judge: 1 Raymond Lopez, a Papago Indian, was charged with second degree murder, 18 U.S.C. §§ 1153 , 1111, in the shooting death of his brother, William. Lopez pleaded not guilty and, following a jury trial, was convicted of voluntary manslaughter, a lesser included offense. He presents five issues for review: (1) whether a reference by the prosecutor in the opening statement to inadmissible evidence should have been grounds for a mistrial; (2) whether it was error for the trial judge to refuse to instruct the jury on specific intent and intoxication; (3) whether reference by the prosecutor in his closing statement to defendant's…

Raymond Lopez, a Papago Indian, was charged with second degree murder, 18 U.S.C. §§ 1153 , 1111, in the shooting death of his brother, William. Lopez pleaded not guilty and, following a jury trial, was convicted of voluntary manslaughter, a lesser included offense. He presents five issues for review: (1) whether a reference by the prosecutor in the opening statement to inadmissible evidence should have been grounds for a mistrial; (2) whether it was error for the trial judge to refuse to instruct the jury on specific intent and intoxication; (3) whether reference by the prosecutor in his closing statement to defendant’s post-arrest silence requires reversal; (4) whether a mistake by the court reporter foreclosed defendant’s presentation of a self-defense theory; and (5) whether the jury based its verdict on sufficient evidence. We affirm.

The shooting took place on the evening of February 28, 1976, on the Papago Indian Reservation. Members of the Lopez family and some of their friends had been drinking heavily for some time when an argument apparently erupted between the brothers in the family home. Raymond stepped outside *683 and called William to come out. Despite his mother’s…

dissenting:

I cannot concur in the majority’s opinion because I am unable to reconcile the majority’s views with our prior decisions in Scarborough v. Arizona (9th Cir. 1976) 531 F.2d 959 , and Fowle v. United States (9th Cir. 1969) 410 F.2d 48 . I cannot agree with the majority’s conclusions that the plain error in prosecutorial comment upon Lopez’ silence can be characterized as harmless beyond a reasonable doubt. In the context of his case, the plain error could not be brushed aside under ordinary harmless error standards; a fortiori, the error cannot be harmless beyond a reasonable doubt. In addition, other errors during the course of the trial, although not of constitutional dimension, cumulatively denied Lopez a fair trial.

I

The majority correctly recognizes that the prosecutorial comment upon Lopez’ silence is “very similar to the one . before us” in Scarborough , where we held that the error was not harmless beyond a reasonable doubt. The majority does not successfully distinguish this case from Scarborough . Indeed, in Scarborough , the comment was less extensive than that in this case, and it was less emphasized by the prosecution in the argument before the…