855 F2d 863 United States v. Judge

855 F.2d 863

Unpublished Disposition

NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel.

UNITED STATES of America, Plaintiff-Appellee,
v.
Gwynne JUDGE, Defendant-Appellant.

No. 86-1369.

United States Court of Appeals, Ninth Circuit.

ARGUED AND SUBMITTED JULY 13, 1988.
DECIDED Aug. 17, 1988.

Before CHOY, FARRIS and WIGGINS, Circuit Judges.

1

MEMORANDUM*

2

Gwynne Judge raises several issues on appeal challenging his convictions for second degree murder and first degree burglary. We reject his arguments and affirm the convictions.

3

Judge argues that the district court abused its discretion in excluding as irrelevant the testimony of James Ward who Judge asserts would have testified that the decedent was a pimp. Judge argues that the testimony was offered after the government had opened the door to evidence regarding the decedent's character and was relevant to his claim of self defense under Fed.R.Evid. 404(a)(2), as well as his state of mind under Fed.R.Evid. 404(b). First, whether the decedent was a pimp is irrelevant to Judge's claim that he was engaged in self defense at the time he killed the decedent. Second, although the defendant's belief that the decedent was a pimp may have been relevant to the defendant's state of mind, whether or not James Ward believed the decedent to be a pimp or had evidence to that effect is irrelevant. The trial judge did not err in excluding the testimony.

4

Judge also assigns as error the trial court's refusal to instruct the jury regarding the lesser included offenses of involuntary manslaughter, 18 U.S.C. Sec. 1112(a), and first degree criminal trespass, Haw.Rev.Stat. Sec. 708-813. Because defense counsel did not object to the exclusion of these instructions, we review for plain error. United States v. Hamilton, 792 F.2d 837, 840 (9th Cir.1986).

5

A defendant is entitled to a lesser included offense instruction if the jury could rationally convict the defendant on the lesser included offense and acquit him of the greater. Keeble v. United States, 412 U.S. 205, 208 (1973); United States v. Manuel, 706 F.2d 908, 916 (9th Cir.1983). A requisite condition for an involuntary manslaughter conviction is that the defendant acted without malice. United States v. Manuel, 706 F.2d 908, 916 (9th Cir.1983). According to Judge's own testimony, he broke into the house screaming at the decedent. After he disarmed the decedent, he continued to assault, beat, and chase the decedent to a corner of the house. After the stabbing, the defendant picked up the pieces of the knife which had broken and ran away without knowing whether the decedent was dead or alive. Even accepting Judge's version of the facts, it was not error for the court to refuse an instruction on involuntary manslaughter. See id. at 916.

6

Burglary in the first degree occurs when the burglarized building is known to be a residence and the perpetrator enters or remains unlawfully with the intent to commit a crime against person or property. Haw.Rev.Stat. Sec. 708-813. Haw.Rev.Stat. Sec. 708-813. Considering the overwhelming evidence that Judge had an intent to inflict bodily injury on the decedent, there was no Considering the overwhelming evidence that Judge had intent to inflict bodily injury on the decedent, there was no "miscarriage of justice" in failing to give an instruction on criminal trespass, and therefore no plain error. See United States v. Hamilton, 547 F.2d 104, 108 (9th Cir.1986) (failure to give jury instruction is plain error only if it may have resulted in a miscarriage of justice or in the denial of a fair trial).

7

Finally, Judge claims that he received ineffective assistance of counsel. Under Strickland v. Washington, 466 U.S. 668, 687 (1984), the Supreme Court requires a defendant to demonstrate: (1) that counsel's performance was so deficient that he or she was not functioning as the "counsel" guaranteed by the Sixth Amendment, and (2) that the defendant was so prejudiced that he or she was deprived of a fair trial "whose result is reliable." Judge fails to meet either prong of this test. First, the record demonstrates, beyond any doubt, that counsel should be commended for the quality of his representation, and in fact was so commended by the trial judge. Second, the evidence of guilt was so overwhelming that Judge cannot seriously argue that his trial lacked a reliable result.

8

AFFIRMED.

*

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Circuit Rule 36-3