604 F.2d 1199 (9th Cir. 1979), 78-2382, United States v. Nick

Docket Nº:78-2382.
Citation:604 F.2d 1199
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Eneas Lavern NICK, Defendant-Appellant.
Case Date:August 22, 1979
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit
 
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Page 1199

604 F.2d 1199 (9th Cir. 1979)

UNITED STATES of America, Plaintiff-Appellee,

v.

Eneas Lavern NICK, Defendant-Appellant.

No. 78-2382.

United States Court of Appeals, Ninth Circuit

August 22, 1979

Rehearing Denied Oct. 18, 1979.

Page 1200

Judith A. Corbin, Asst. U. S. Atty. (argued), Spokane, Wash., for plaintiff-appellee.

Claude F. Bailey (argued), Quackenbush, Dean, Bailey & Henderson, Spokane, Wash., for defendant-appellant.

Appeal from the United States District Court for the Eastern District of Washington.

Before CARTER and HUFSTEDLER, Circuit Judges, and MURRAY, [*] District Judge.

PER CURIAM:

Nick appeals from his conviction for sexually assaulting a three-year-old boy. Nick and the child are Indians, and the crime occurred on an Indian Reservation. On appeal, Nick contends that the district court erred (1) in denying his motion to suppress inculpatory statements that he claims were taken in violation of his Miranda rights, and

Page 1201

(2) in admitting, over hearsay and confrontation clause objections, damaging statements of the victim reported in the testimony of the child's mother and his physician.

The assault occurred when Nick was babysitting the child. The child's mother had known Nick for many years, and the child was well acquainted with Nick. When the child's mother picked up the youngster, the child was asleep with Nick in a locked bedroom. The child's pants were unzipped. After she brought the child home, she observed "white stuff" in the youngster's clothing. The mother asked the child whether Nick had done anything to him, and the child responded, "Yeah, Eneas (Nick) stuck his tutu in my butt." The child also stated that Nick had hurt him and made him cry. The following day, a physician examined the child, and found physical evidence consistent with penetration of the child's rectum. The physician testified about the child's description of the assault. Expert testimony identified the stains on the child's clothing as semen.

The child's mother reported the incident to Nomee, a tribal policeman. Nomee went to Nick's house and placed him under arrest. When Nomee put Nick in his car to drive him to jail, he advised Nick of his Miranda rights. Nick asked Nomee to look in Nick's bedroom for a piece of paper with his lawyer's name and telephone number on it. Nomee testified that he later looked for the paper, but he did not find it until after Nick had confessed, been arraigned, and had counsel appointed for him.

Nomee called BIA Agent Ough, who in turn called FBI Agent Elkington. Nomee related Nick's request for the paper to Ough, but neither Nomee nor Ough told Elkington of Nick's request, although Ough told Nomee he would do so. Elkington interviewed Nick the day after the arrest. Elkington again advised Nick of his Miranda rights, and Nick thereafter signed a waiver form and agreed to talk about the incident. Ough was present throughout Elkington's interrogation of Nick, including Nick's reading and signing the waiver of rights form. Ough did not bring up Nick's request for the piece of paper before or during that time. During the course of the interrogation, Nick first denied having assaulted the child, but he later admitted the crime. After the confession, Nick again requested the "piece of paper."

I

We reject the Government's argument that Nick never effectively requested counsel. His request for counsel might have been phrased more artistically, but we think that it was more than adequate to assert his right to counsel.

The more difficult question is whether the Government carried its heavy burden of proving that Nick knowingly and intentionally waived his right to counsel after invoking that right. (Brewer v. Williams, 430 U.S. 387, 97 S.Ct. 1232, 51 L.Ed.2d 424 (1977).) The strict standard of Johnson v. Zerbst,304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938) applies and "every reasonable presumption (is) against waiver." (Id. at 404, 97 S.Ct. 1232, 1242, 51 L.Ed.2d 424.) We recognize that an express written waiver of the right to counsel is strong evidence of a valid waiver although it is by no means always sufficient to establish waiver. (North Carolina v. Butler,--- U.S. ----, 99 S.Ct. 1755, 60 L.Ed.2d 286 (1979).) The interrogation did not follow "hard on the heels of the demand for counsel." (See, e. g., United States v. Nixon, 571 F.2d 1121 (9th Cir. 1978).) On the other hand, Nick is mildly retarded and has limited verbal skills. Nick himself testified that he did not know what the waiver form meant and that he signed the form thinking it would help him. But for United States v. Rodriguez-Gastelum, 569 F.2d 482 (9th Cir. En banc 1978), we may have decided that the Government fell short of sustaining its heavy burden. But fidelity to Rodriguez-Gastelum requires us to support the district court on the waiver point.

II

Pursuant to the district court's ruling In limine, the physician was permitted to testify only to those portions of the

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child's statements that were relevant to the cause of the injury, omitting the identity of the assailant. The child's declarations were corroborated by the doctor's examination of the child and of the child's clothing. The doctor's quotations of the child were hearsay, but they were admissible under Federal Rules of Evidence, Rule 803(4) admitting hearsay statements "made for purposes of medical diagnosis or treatment and describing . . . the inception or general character of the cause or external source (of pain or symptoms) insofar as reasonably pertinent to diagnosis or treatment." (Britt v. Corporacion Peruana de Vapores, 506 F.2d 927 (5th Cir. 1975). See United States v. Lechoco,177 U.S.App.D.C. 9, 14 n. 6, 542 F.2d 84, 89 n. 6 (1976).)

Nick also challenges the admission, over hearsay objection, of the mother's testimony concerning the child's statements to her including the youngster's identification of Nick as his assailant. The district court overruled Nick's objection on the ground that the statement was admissible under the excited utterances exception to the hearsay rule in Rule 803(2) of the Federal Rules of Evidence. That section permits the introduction of a hearsay statement "relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition." Contrary to Nick's argument, we believe that the record amply sustains the district court's conclusion that the child was suffering distress from the assault when he told his mother what happened and identified Nick as the perpetrator of the offense. The district court correctly overruled the hearsay objection. (United States v. Chee, 422 F.2d 52 (9th Cir. 1970); United States v. Napier, 518 F.2d 316, 317-18 (9th Cir. 1975).)

III

The troublesome issue is whether the district court erred in overruling Nick's objections to the admissible hearsay on the ground that the testimony violated his confrontation right secured by the Sixth Amendment. (California v. Green, 399 U.S. 149,...

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