United States v. Daniel Joe Chischilly

30 F.3d 1144 63 USLW 2082 , 40 Fed. R. Evid. Serv. 289 UNITED STATES of America, Plaintiff-Appellee, v. Daniel Joe CHISCHILLY, Defendant-Appellant. No. 92-10619. United States Court of Appeals, Ninth Circuit. Argued and Submitted Nov. 1, 1993. Decided July 25, 1994. Deborah Williams, Asst. Federal Public Defender, Phoenix, AZ, for defendant-appellant. Stanley L. Patchell, Asst. U.S. Atty., Phoenix, AZ, for plaintiff-appellee. Appeal from the United States District Court for the District of Arizona. Before: CHOY, CANBY, and NOONAN, Circuit Judges. Opinion by Judge CHOY; Dissent by Judge NOONAN. CHOY, Circuit Judge: 1 On July 2, 1992, appellant Daniel Chischilly ("Chischilly") was convicted by a jury in the United States District Court for the District of Arizona of aggravated sexual abuse and murder in violation of 18 U.S.C. Secs. 1111 , 1153 and 2241(b)(1). Chischilly appeals, challenging six aspects of the court's ruling and one aspect of sentencing, including (1) the judge's refusal to recuse himself on the basis of prior dealings with the defendant in state court proceedings; (2) the finding that Chischilly was competent to stand trial; (3) the finding that Chischilly consented…

dissenting:

On January 18, 1979, Chischilly was indicted on four counts of unlawful “sexual contact” with four separate women during 1978 and 1979. On April 9, 1979, a competency hearing was held in the Superior Court of Yavapai County, Arizona, at the end of which the court ruled “that the defendant is incompetent, that he does not understand these acts, and that he cannot assist counsel in his defense.” Therefore the judge dismissed the charges of sexual contact without prejudice.

On October 14, 1983, Chischilly was sentenced in a state court in New Mexico for aggravated battery and attempted murder. He was ordered to be imprisoned for six years; the court recommended that he also be moved as early as possible to the state hospital for long-term mental health treatment.

On February 21, 1990, he was indicted in this case for murder and aggravated sexual abuse. The case came on for trial before the federal judge who, as an Arizona state judge in 1979, had found him incompetent, unable to understand the nature of his acts, and unable to assist in his own defense. Chischilly asked this judge to determine that he was incompetent to stand trial in this case. In the course of…

Opinion by Judge CHOY; Dissent by Judge NOONAN.

On July 2, 1992, appellant Daniel Chischilly (“Chisehilly”) was convicted by a jury in the United States District Court for the District of Arizona of aggravated sexual abuse and murder in violation of 18 U.S.C. §§ 1111 , 1153 and 2241(b)(1). Chisehilly appeals, challenging six aspects of the court’s ruling and one aspect of sentencing, including (1) the judge’s refusal to recuse himself on the basis of prior dealings with the defendant in state court proceedings; (2) the finding that Chisehilly was competent to stand trial; (3) the finding that Chisehilly consented to give a blood sample despite his prior request for an attorney; (4) the admission of testimony relating to Chischilly’s DNA test results; (5) the finding of a sufficient nexus between vehicular assault and rape to support a felony murder charge; (6) the refusal to give requested jury instructions on involuntary manslaughter, a lesser included offense; and (7) the imposition of concurrent life sentences based on aggravating circumstances in the absence of a sufficient statement of reasons for an upward departure.

Having jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C.…