The People of the Territory of Guam v. Thomas v. McGravey

14 F.3d 1344, 94 Cal. Daily Op. Serv. 307, 94 Daily Journal DAR 545, 1994 U.S. App. LEXIS 555, 1994 WL 9182

• Court: Court of Appeals for the Ninth Circuit
• Decided: January 14, 1994
• Docket: 92-10003
• Status: Published

Opinions

WILLIAM A. NORRIS, Circuit Judge:

Appellant Thomas MeGravey challenges his convictions for first and second degree criminal sexual assault on the ground that the jury instructions, taken as a whole, misled the jury by directing it to give undue weight to the testimony of the victim, who was a minor.

MeGravey identifies two instructions that were given and one proposed instruction that was rejected by the trial court as the basis for his appeal. Because we hold that the jury instructions, viewed in their entirety, did not lead the jury to place a disproportionate emphasis on the testimony of the alleged "victim, we affirm.

FACTUAL BACKGROUND

MeGravey was tried before a jury on the charge of sexually molesting his nephew on two separate occasions — first when the child was seven years old and again when the child was nine years old. Since there were no witnesses to the alleged acts, and because neither side offered any corroborating evidence to support its version of the events, the trial boiled down to a pure credibility contest between the defendant and the alleged victim, who was then ten years old.

At trial, MeGravey objected unsuccessfully to two separate jury instructions. The first instruction he challenged stated:

The testimony of a victim of criminal sexual conduct need not be corroborated if the victim is believed beyond a reasonable doubt.

This instruction was patterned after 9 Guam Code Annotated § 25.40, which provides that a victim’s testimony need not be corroborated in prosecutions for sexual offenses. The second instruction he challenged stated:

The court shall allow a support person to be present during a child-victim’s testimony. No prejudice exists because of that presence.

This instruction was taken verbatim from 8 Guam Code Annotated § 75.80.

Finally, MeGravey proposed the following instruction regarding the testimony of child witnesses, which the trial court rejected:

A child is not disqualified as a witness simply by reason of his youth. There is no precise age which determines a child’s competency. This depends on his capacity and intelligence, on his understanding of the difference between truth and falsehood, and on his appreciation of his duty to tell the truth.

As with all other witnesses, you are the sole judge of the credibility of a child who testifies. You may consider not only his age but his demeanor on the stand, his capacity to observe facts and to recollect them, his ability to understand questions put to him and to answer them intelligently, whether he impresses you as having an accurate memory and recollection, whether he impresses you as a truth-telling individual, and any other facts and circumstances which impress you as significant in determining his credibility. On the basis of your consideration you may give the child’s testimony such weight as you in your judgment think it is entitled to.

Children are likely to be more suggestible than adults. Moreover, children may not have a full understanding of the serious consequences of the testimony they give and the charges they make. You should therefore consider the capacity of a child witness to distinguish truth from falsehood and to appreciate the seriousness of his testimony in evaluating the testimony.

This instruction was taken from 1 Devitt & Blackmar, Federal Jury Practice and Instructions, § 17.17 (3rd ed. 1977).

Following his conviction on both counts, MeGravey appealed to the Appellate Division of the District Court of Guam, raising all three of his challenges to the jury instructions. The Appellate Division affirmed McGravey’s convictions. Our review of the Appellate Division’s ruling is de novo. Guam v. Yang, 850 F.2d 507, 511 (9th Cir.1988) (en banc).

STANDARD OF REVIEW

In reviewing jury instructions, “[o]ur inquiry is whether the jury instructions as a whole are misleading or inadequate to guide the jury’s deliberations.” United States v. Joetzki, 952 F.2d 1090, 1095 (9th Cir.1991). The trial judge has substantial latitude in formulating jury instructions so long as the instructions fairly and adequately cover the issues presented. United States v. Powell, 955 F.2d 1206, 1210 (9th Cir.1992). Jury instructions, even if imperfect, are not a basis for overturning a conviction absent a showing that they constitute an abuse of the trial court’s discretion. Joetzki, 952 F.2d at 1095.

I. THE NON-CORROBORATION INSTRUCTION

Appellant contends that the non-corroboration instruction — that no corroboration of the victim’s testimony is necessary if the victim is believed beyond a reasonable doubt — erroneously implied that the jury was to evaluate the testimony of the victim differently, and indeed more favorably, than that of any other witness — particularly the accused.

Appellant’s objection is not to the substance of this instruction, but to the fact that the court gave no analogous instruction with regard to the defendant’s testimony. His contention is that by specifying that the jurors may believe the alleged victim’s testimony without corroboration — but saying nothing of the sort about the defendant’s testimony — the instruction led the jurors to believe that the defendant’s testimony was unworthy of belief unless it was corroborated by other evidence. The upshot, he argues, was to “shift[ ] the burden of persuasion to the defendant ... by requiring him to produce corroborative evidence of his innocence.” Defendant-Appellant’s Opening Brief at 7. We disagree.

A single instruction may not be judged in artificial isolation, but must be viewed in the context of the overall charge. United States v. Marsh, 894 F.2d 1035, 1040 (9th Cir.), cert. denied, 493 U.S. 1083, 110 S.Ct. 1143, 107 L.Ed.2d 1048 (1990). When the non-corroboration instruction is reviewed in context, it becomes clear that the jurors were not misled into believing they were to attach any special weight to the testimony of the alleged victim. In fact, quite to the contrary, the judge gave numerous instructions which made it plain to the jury that it was to treat the testimony of the alleged victim no differently from the testimony of any other witness. For instance, he instructed the jurors that they were “the sole judges of the credibility of the witnesses and the weight their testimony deserves,” and he explained the factors that the jurors should consider in evaluating the testimony of each of the witnesses brought before them.¹ Moreover, he stated that they “may disbelieve all or any part of any witness’ testimony,” and that it was important for them to evaluate “the extent to which, if at all, each witness is either supported or contradicted by other evidence.” The jury was explicitly told to “judge the testimony of the defendant just as you [would] judge the testimony of any other witness.” And finally, the jury was admonished that “[t]he weight of the evidence presented by each side does not necessarily depend on the number of witnesses testifying on one side or the other. You must consider all the evidence in.the case, and you may decide that all the testimony of a smaller number of witnesses on one side has a greater weight than that of the larger number on the other.” In light of these instructions, we think that no reasonable juror would believe that the testimony of the alleged victim was entitled to any special deference.

Nor would a reasonable juror have believed that the defendant was required to produce corroborating evidence in support of his testimony. In his instructions to the jury, the trial judge properly emphasized that the defendant was entitled to a presumption of innocence, and that the burden was on the government to prove its case beyond a reasonable doubt.

In sum, the combined effect of these instructions was to make clear that the testimony of each witness was to be judged by the same standard. Hence, in light of the entirety of the instructions given, we hold that the trial court did not err by giving the non-corroboration jury instruction.²

II. THE SUPPORT PERSON INSTRUCTION

Appellant next argues that the support person instruction was improper because it used the phrase “child-victim” rather than “child witness.”³ He claims that the use of this phrase improperly singled out the victim apart from all other witnesses and prejudiced his defense. This claim lacks merit.

The trial court was careful to define its use of the term “victim” so as to avoid the possibility of confusion or prejudice. Indeed, the court stated explicitly that “[a] ‘victim’ is defined or means the person whom the defendant allegedly subjected to criminal sexual conduct” (emphasis added). This definitional instruction was an adequate safeguard against any potential prejudice that might conceivably flow from the use of the word “victim.”

III. THE CHILD WITNESS INSTRUCTION

Appellant also argues that the trial court erred in refusing to give his requested jury instruction stressing the suggestibility of children. He contends that the instruction was particularly necessary here because it went directly to his defense theory — namely, that the. child’s mother coerced him into fabricating these accusations against the defendant as a result of a bitter feud between the child’s mother and appellant.

We decline appellant’s invitation to establish as the law of Guam a rule requiring the trial court to give a special child witness instruction when a child testifies in a sexual abuse case. We know of riot a single jurisdiction that has adopted the view taken by appellant and the dissent. See Connecticut v. James, 211 Conn. 555, 560 A.2d 426, 433-35 (1989) (overruling case requiring such an instruction and collecting cases).⁴ All jurisdictions that have considered the matter either prohibit such an instruction, see, e.g., Lewis v. Indiana, 264 Ind.. 288, 342 N.E.2d 859, 864 (1976) (murder conviction), or entrust the matter to the trial court’s discretion. See, e.g., California v. Thomas, 20 Cal.3d 457, 470-71, 143 Cal.Rptr. 215, 573 P.2d 433 (1978). We think the better view is the “prevailing view,” that “a trial judge retains discretion to determine whether the jury should receive a special instruction with respect to the credibility of a young witness, and if so, the nature of that instruction.” Massachusetts v. Avery, 14 Mass.App.Ct. 137, 437 N.E.2d 242, 245 (1982). Such a view accords with the federal rule that the trial court has discretion to comment on evidence as long as it makes clear that the jury must ultimately decide all questions of fact for itself.. See United States v. Sanchez-Lopez, 879 F.2d 541, 553 (9th Cir.1989).

In this case, the trial judge refused to give a special child witness instruction, relying instead on the general credibility instructions. We hold that the trial judge did not abuse his discretion in doing so.⁵ Appellant’s defense at trial was that the ten-year old child was lying and that his mother put him up to it as part of a vendetta against her brother, the defendant. Appellant had the opportunity to cross-examine the child and to present testimony in support of his theory of the case. He also could have, but did not, present expert testimony on the issue of sexual abuse of children or the susceptibility of children to suggestion. By the close of trial, the issue for the jury was clear: one of the two, the child or the appellant, was not telling the truth. The proffered child witness instruction would have added nothing to the jury’s ability to understand and evaluate appellant’s defense or to evaluate the credibility of the child vis-a-vis the defendant. The essential point of such an instruction— that the jury should carefully scrutinize the credibility of the witnesses and their testimony — -was adequately conveyed to the jury by the general witness credibility instructions. The only possible effect of appellant’s proposed instruction would have been to undermine the believability of the child’s testimony by “denigrat[ing] a child as usually less worthy of belief than an adult.” James, 560 A.2d at 435.⁶

We agree with the dissent that the consequences of an erroneous verdict in a case involving the alleged sexual abuse of a child are grave and that courts must exercise great care in trying to assure that justice is done in every case. We simply disagree that the solution lies in requiring special jury instructions stressing the susceptibility of children to suggestion. Such courtroom weapons as cross-examination, contradictory evidence, evidence that a witness has been influenced by others, and argument are the time-honored methods of educating a jury on issues of credibility. We leave it to the sound discretion of the trial judge to determine whether the ends of justice would be served by supplementing these methods with an instruction commenting on the credibility of a particular child witness.

The decision of the Appellate Division of the District Court of Guam is AFFIRMED.

1 . The jury was instructed to keep the following considerations in mind when evaluating the weight of testimony it had heard:

You should carefully scrutinize all the testimony given, the circumstances under which each witness has testified, and every matter in evidence which tends to show whether a witness is worthy of belief. Consider each witness’ intelligence, motive and state of mind, and demean- or and mánner while on the stand. Consider the witness’ ability to observe the matters as to which he or she has testified, and whether he or she impresses you as having an accurate recollection of these matters. Consider also any relation each witness may bear to either side of the case; the manner in which each witness might be affected by the verdict; and the extent to which, if at all, each witness is either supported or contradicted by other evidence in the case.

(emphasis added).

2 . Our decision today accords with the rule previously set forth by the Appellate Division of the District Court of Guam in Guam v. Welch, No. 90-00008A, 1990 WL 320365 (D. Guam App.Div. Oct. 30, 1990), that "a reviewing court examines a challenged jury instruction in the context of the instructions as a whole ... [to determine whether it] unduly call[s] attention to the victim's testimony.” Id. at *1. Both appellant and the dissent rely on California cases to argue that the trial court erred. However, California caselaw is beside the point because there is no evidence that the sexual abuse statute or the non-corroboration instruction was based on California law. See Tabor v. Ulloa, 323 F.2d 823, 824 n. 5 (9th Cir.1963) ("Decisions of the California court subsequent to the adoption of the Code by Guam are not binding, but are persuasive of the construction to be given provisions in the Code of Guam borrowed from the California Code.”) (emphasis added). The government argues that the trial court’s decision to give the non-corroboration instruction was not erroneous because Guam's non-corroboration statute does not track California law, but rather is identical to a Michigan statute and the Michigan court of appeals has approved such a non-corroboration instruction. See People v. Smith, 149 Mich.App. 189, 385 N.W.2d 654, 657 (1986). Although there is no evidence that Guam consciously followed Michigan law, the fact that Michigan courts have approved a similar instruction has some persuasive force.

3 .The support person instruction stated: "The court shall allow a support person to be present during a child-victim’s testimony. No prejudice exists because of that presence.” See 8 G.C.A. § 75.80.

4 . We also note that the dissent’s premise — that children are more suggestible than adults and are thus less likely to testify accurately — is not an undisputed scientific fact. Psychological studies have failed to reach a consensus on this question. See James, 560 A.2d at 434-35 (citing studies questioning the conventional wisdom that children are less likely to he truthful on the witness stand than adults and that children are less capable of distinguishing real from imaginary events); see also Marc Lindberg, An Interactive Approach to Assessing the Suggestibility and Testimony of Eyewitnesses, in The Suggestibility of Children’s Recollections 48 (John Doris ed., 1991) ("[Tjhere is not a sound theoretical taxonomy that can organize the data on the development of suggestibility in memory performance. All we know is that under different conditions, children’s memories are sometimes more suggestible, in others, less suggestible, and in still others, they do not differ from adults.”). Because the question of whether children are more suggestible than adults is controversial in the psychological community, requiring a standard child witness instruction in all cases that hinge on a child’s credibility would be inappropriate.

5 . The dissent argues that the trial judge's discretion was improperly influenced by Ninth Circuit Model Jury Instruction 4.14, which recommends against giving a special credibility instruction whenever a child testifies. Dissent at 401^402. As the dissent acknowledges, however, a model juiy instruction does not constitute the law of the circuit, but is simply advisory. The mere fact that the trial judge considered the suggestion of the advisory committee does not mean that he committed a clear error of judgment. On the record of this case, the trial court's decision not to require a special child witness instruction is not a basis for reversing the conviction.

6 . The dissent makes much of the fact that the child in this case had in the past lied to protect his mother, the very person who defendant alleges induced him to testify about the instances of sexual abuse. Dissent at 402. It is unclear why this fact requires a special jury instruction about the suggestibility of children generally, especially since the defendant cross-examined both the child and his mother and argued to the jury that the child had previously lied. The dissent also analogizes child witnesses to government informers and individuals granted immunity from prosecution, arguing that there is "at least as compelling a reason for a cautionary instruction pertaining to child witnesses in sexual molestation cases." Dissent at 400. We cannot agree. A juror may never have encountered an informer before and is likely to be unversed in the types of agreements informers make with the government and the incentives that such agreements create. Children and their behavior, by contrast, are hardly foreign to the typical juror.