U.S. v. Brady

• Decision Date: 20 June 1978
• Docket Number: 77-3678,Nos. 77-3677,s. 77-3677
• Citation: 579 F.2d 1121
• Parties: UNITED STATES of America, Appellee, v. Elmer BRADY, Jr., Appellant. UNITED STATES of America, Appellee, v. Joseph James WATERS, Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1121

579 F.2d 1121

UNITED STATES of America, Appellee, v. Elmer BRADY, Jr., Appellant.

UNITED STATES of America, Appellee, v. Joseph James WATERS, Appellant.

Nos. 77-3677, 77-3678.

United States Court of Appeals, Ninth Circuit.

June 20, 1978.

Rehearing and Rehearing En Banc Denied Aug. 8, 1978.

James P. Murphy, of Berger, Anderson, Sinclair & Murphy, Charles F. Moses, of Moses, Tolliver & Wright, Billings, Mont., for appellants.

Robert Zimmerman, Asst. U. S. Atty., Billings, Mont., for appellee.

Appeals from the United States District Court, District of Montana (Billings Division).

Before CHAMBERS and KILKENNY, Circuit Judges, and KELLEHER, District Judge. ^*

KILKENNY, Circuit Judge:

Each appellant is an Indian, who was tried by a jury and convicted of voluntary manslaughter committed on the Northern Cheyenne Indian Reservation in violation of 18 U.S.C. §§ 1112 and 1153. The cases were consolidated for trial and for the arguments on appeal. We hold that each judgment of conviction must be affirmed.

FACTS

The record shows that Fred Medicine Bull, Sr. (decedent) was involved in an automobile accident on June 18, 1977, resulting in hospitalization for head injuries until June 20th of the same year. After leaving the hospital, decedent set out on a drinking spree and became intoxicated. In the early morning hours of June 21st, he ended up in a small house on the Northern Cheyenne Indian Reservation occupied by James and Emiline Limpy in Lame Deer, Rosebud County, Montana. All the occupants, the appellants, the Limpys, the decedent, and Cheryl Shoulderblades were drinking wine, and became intoxicated. In addition, there were three children and possibly other parties at the house.

Following a remark to Shoulderblades by decedent, he was assaulted and battered by each of the appellants, as a result of which he became unconscious and subsequently died. The facts surrounding the assault are not in sharp dispute. After appellants and Shoulderblades left the house, decedent was taken to Lame Deer Clinic and from there to the Crow Hospital and finally to a hospital in Billings, Montana, where he died of a subdural hematoma on June 26, 1977. Each appellant testified and conceded participation in assaulting the deceased while accusing the other of greater participation. Two doctors called by the government testified that in their opinion, decedent died from the injuries received in the fight on June 21, 1977. A more detailed treatment of the facts will be developed in our treatment of the issues before us.

PROCEDURAL BACKGROUND

On August 24, 1977, in the Billings Division of the United States District Court for the District of Montana, an indictment was returned charging appellant Waters with the crime of voluntary manslaughter in the death of decedent, in violation of 18 U.S.C. §§ 1112 and 1153. On the same date, a similar indictment was returned in the same court against appellant Brady. Following pleas of not guilty, the government moved to consolidate the causes for trial. Over appellants' objections, the court ordered consolidation.

Later, appellant Waters, joined by Brady, filed a pretrial motion challenging the composition of the grand jury by which he was indicted and of the petit jury before which he was to be tried. He charged that the juries were selected in violation of 28 U.S.C. §§ 1861, 1862, and 1863. In support of the challenge, Waters filed an affidavit which was later supplemented by another affidavit. After a hearing on the challenge to the composition of the grand jury, the court denied Waters' motion to dismiss the indictment.

Later, each appellant moved to sever his trial pursuant to the provisions of Rule 14, FRCrimP, contending that a joint trial would be highly prejudicial. The motion to sever was denied, and the cause proceeded to trial. Following a four day jury trial, both appellants were found guilty. Waters was sentenced to imprisonment for a period of ten years, and Brady for a period of eight years.

ISSUES

The issues before us may be summarized as follows:

I.

Each appellant contends that there was insufficient evidence to support a conviction.

II.

Each appellant contends that there was erroneous joinder of the cases for trial under Rule 13 and an improper refusal to sever the causes under Rule 14, FRCrimP.

III.

Each appellant contends that he was denied a fair trial.

IV.

Each appellant contends that there was a violation of the rules stated in Bruton v. United States, 391 U.S. 123, 126-128, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968).

V.

Each appellant contends that there was a systematic exclusion of Indians from the grand and petit jury panels in violation of 28 U.S.C. §§ 1861 Et seq.

SUFFICIENCY OF THE EVIDENCE

Under this heading, appellants, in general, claim: (a) that the government failed to establish beyond a reasonable doubt that the actions of the appellants, or either of them, caused decedent's death; (b) that at most the government's evidence showed that a brawl had occurred between appellants and decedent in which blows had been struck, but did not establish beyond a reasonable doubt the requisite intent to find that either appellant was guilty of voluntary manslaughter.

(a) The government called two doctors who testified that the injuries inflicted by appellants caused decedent's death. That the decedent, while intoxicated, was savagely assaulted and battered by the appellants is beyond question. The witness Emiline Limpy testified she saw Waters kick decedent at least five times. After looking away and returning to a window, Waters was still "kicking and jumping on Fred." When this was over, Waters turned to Brady and told him it was his chance and Brady then jumped on the decedent's stomach at least twice. Apparently this wasn't enough for the evidence shows that Waters then continued to beat and kick the defenseless decedent.

About this time, Waters pulled the pants off decedent and proceeded to kick the helpless decedent between the legs. Shoulderblades fully corroborated the testimony of Limpy. She testified that Brady commenced the fight by slapping decedent and that Waters joined in the attack by hitting him. After Brady started hitting him, decedent fell out of his chair. Decedent started to get up after he was knocked down the first time but fell to the floor. Shoulderblades said that at this time both men were still beating decedent. She testified she saw both appellants repeatedly kick decedent and strike him with their fists. She said she then stopped her cousin, appellant Waters, and felt that decedent needed a doctor to save his injured eye. She then summoned the police and an ambulance. After requesting the aid, Shoulderblades left the house while decedent remained injured inside.

Brenda Brady, a twelve year old girl, was asleep when the affair started, but once awake she observed essentially the same conduct as the others. She saw Waters hit the decedent many times and after one blow, the decedent fell back. She observed appellants taking the decedent's pants down and after he was on the floor, she saw Waters kicking the decedent. Brady did the same. Then Waters pulled the decedent back and kicked him in the shoulder, as did Brady. Later, appellants dragged the decedent to the door while administering more kicks. At the trial, each appellant, by inference at least, accused the other of striking, beating, and kicking the decedent.

The photographs of decedent's face and body which were taken shortly after the occurrence and introduced in evidence, fully corroborate the testimony that his face and head had been cruelly battered, and that the blood, contusions, and bruises were of recent origin. Each of the doctors were acquainted with these facts when answering the hypothetical questions and based on these facts each expressed an opinion that death resulted from the blows received in the assault, rather than from head injuries suffered in the automobile accident which occurred three days prior to the attack.

We have no difficulty in holding that there was evidence sufficient to go to the jury on the cause of death and that the jury's finding under the court's instructions that the death was caused by the appellants' assault is supported by substantial evidence.

Appellants argue that the doctors' testimony did not exclude every possible hypothesis as to the cause of death. This argument is answered by United States v. Daniels, 549 F.2d 665 (CA9 1977), where it is said "In determining the sufficiency of circumstantial evidence, the question 'is not whether the evidence excludes every hypothesis except that of guilt but rather whether the trier of fact could reasonably arrive at its conclusion.' " At 668.

The doctors here could reasonably have concluded from the direct evidence that the decedent's death was caused by appellants' brutal attacks. Moreover, circumstantial evidence is intrinsically no different from direct evidence. United States v. Kelly, 527 F.2d 961, 965 (CA9 1976); United States v. Nelson, 419 F.2d 1237, 1240-41 (CA9 1969). On an issue such as this, we must accept the tenet that all reasonable inferences supporting the verdict are in favor of the government as the prevailing party below, Diaz-Rosendo v. United States, 357 F.2d 124, 129 (CA9 1966), Cert. denied, 385 U.S. 856, 87 S.Ct. 104, 17 L.Ed.2d 83, and that it is the exclusive function of the jury to determine the credibility of the witnesses, resolve evidentiary conflicts and draw reasonable inferences from proven facts. United States v. Nelson, supra, at 1241. Another basic rule which we must follow is that circumstantial and testimonial evidence are indistinguishable insofar as the jury's fact finding function is concerned and that circumstantial evidence can be used to prove any fact, including facts from which another fact is to be inferred. United States v. Polizzi, 500 F.2d 856, 904 (CA9 1974), Cert. denied, 419 U.S. 1120, 95 S.Ct. 802, 42 L.Ed.2d 820 (1975).

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