U.S. v. Bruce
| Decision Date | 15 August 2006 |
| Docket Number | No. 05-2150.,05-2150. |
| Citation | 458 F.3d 1157 |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. Kendall Shannon BRUCE, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Tenth Circuit |
Michael A. Keefe, Assistant Federal Public Defender, Albuquerque, NM, for Defendant-Appellant.
Presiliano Torrez, Assistant United States Attorney (David C. Iglesias, United States Attorney, Kyle T. Nayback, Assistant United States Attorney, with him on the brief), Albuquerque, NM, for Plaintiff-Appellee.
Before MURPHY, HOLLOWAY, and HARTZ, Circuit Judges.
A grand jury returned a three-count indictment against Kendall Bruce, accusing him of two counts of assault with a dangerous weapon with intent to do bodily harm and one count of assault resulting in serious bodily injury. 18 U.S.C. §§ 113(a)(3), 113(a)(6), 1153(a). A jury found Bruce guilty of all three counts. Bruce claims he is entitled to a new trial because the district court failed to instruct the jury on the lesser-included offense of simple assault. Alternatively, assuming his convictions are affirmed, Bruce asserts he is entitled to be resentenced because the district court imposed a special term of supervised release without first providing the notice required by Fed.R.Crim.P. 32(c)(1).
This court exercises jurisdiction over Bruce's appeal pursuant to 18 U.S.C. § 3742(a) and 28 U.S.C. § 1291. The district court did not commit plain error when it failed to sua sponte instruct the jury on the lesser-included offense of simple assault. Thus, we affirm Bruce's convictions. Because the district court failed to provide Bruce reasonable notice of its intent to impose as a special condition of supervised release that Bruce consent to suspicionless searches of his person and property, however, we remand to the district court to vacate Bruce's sentence and resentence him in accord with Fed. R.Crim.P. 32(c)(1).
The victim of the assaults underlying the charges in this case was Hannalita Long, Bruce's girlfriend and the mother of his four children. Bruce and Long lived together in Prewitt, New Mexico, a town within the boundaries of the Navajo Reservation. On the night of June 25, 2004, Bruce and Long socialized with friends and family; both drank large amounts of alcohol. Long spent the night at her mother's home, rather than at the trailer she shared with Bruce, because she and Bruce had been arguing during the course of the evening.
The next morning, Bruce and Long began to argue when Bruce refused to take the couple's son, Kendall Jr., to Albuquerque to see a movie as promised. The argument involved physical violence and eventually escalated to the point that Long began to pack her belongings to leave the couple's home. Bruce repeatedly apologized to Long and specifically apologized for pushing her and throwing a lighter at her. Long refused to accept the apologies, insisted she was going to leave and move in with her mother, and called Bruce a liar because he had previously said he would not hit her again.
When Long refused to accept Bruce's apologies, he grabbed her by her hair and banged her head into a weight bench. Long fell to the floor, and Bruce repeatedly punched and kicked her. When Kendall Jr. intervened and attempted to stop the beating, Bruce continued kicking Long and told Kendall Jr., While she was lying on the floor, Long saw Bruce grab a small weight. Although Long did not actually see Bruce swing the weight, she thought he hit her with it.
At some point during the beating, Bruce dragged Long to the living room of the trailer. Long testified Bruce stated he would "use a different object to mess my face up." Bruce then stepped out the front door of the trailer to retrieve a shock absorber. Bruce hit Long in the face, arms, back, and head with the shock absorber. Bruce continued to drag Long by her hair and to strike her from behind. Eventually, Long fell to the floor, at which point Bruce kicked her in the face and stood on her neck until she lost consciousness.
The beating finally came to an end when Long's aunt, Fanny Chavez, knocked on the trailer door. Bruce ordered Long to hide in the middle bedroom so Chavez could not see her. After a delay, Bruce answered the door; Chavez noted Bruce had blood spatter on his face and blood on his fingers and knuckles. Bruce told Chavez that Long was not home and that he thought she was still at her mother's house. Long, however, was able to get Chavez's attention through a window in the trailer and indicate she needed help. At that point, Long bolted past Bruce and jumped into Chavez's truck. Long and Chavez waited a few moments because Kendall Jr. was still in the trailer and they feared for his safety. Bruce let Kendall Jr. out the front door; Kendall Jr. was covered with blood spatter, but was not injured physically. Chavez drove Long to her mother's home; from there, an ambulance took Long to Cibola General Hospital.
Doctor Chander Bhatia, an internist and certified trauma and life support specialist, treated Long at the hospital. Doctor Bhatia testified that when Long arrived at the hospital, she was in extreme pain and had numerous injuries to her face and body. Doctor Bhatia started Long on intravenous fluids and gave her a "strong," narcotic pain medication. Long told Bhatia that Bruce beat her with a weight lifting object and that she had lost consciousness twice during the beating. Doctor Bhatia testified loss of consciousness could indicate a concussion-based trauma to the brain and the resulting injury could "have long lasting effects."
In addition to the multiple contusions and lacerations on her face and head, Long had a large laceration on her forehead. According to Doctor Bhatia, the large laceration was caused by a blunt object; based on the size of the laceration, the blow that caused it involved "a lot of force." Doctor Bhatia testified injuries to the forehead and scalp, such as Long's, presented a serious possibility of death because they bleed profusely. In fact, at the time she arrived at the hospital, Long had already lost a lot of blood, necessitating the use of intravenous fluids.
Finally, Doctor Bhatia testified that in his expert opinion, Long had suffered extreme pain, the scarring caused by the large laceration on her forehead would be life-long, and the injuries Long suffered presented a substantial risk of death. Doctor Bhatia further noted the injuries Long suffered were consistent with weapons Long had described Bruce as using to beat her, i.e., a weight lifting object and a shock absorber.
Bruce conceded during his opening statement that he and Long fought on the day of the alleged assaults. He contested, however, the government's assertion he had beaten Long with a weight lifting object or a shock absorber. He also contested the government's assertion the injuries Long suffered as a result of the assaults were "serious." Although Bruce did not testify at trial, his counsel cross-examined each of the government's witnesses concerning the objects used in the beating and the seriousness of the resulting injuries.
Under cross-examination, Long admitted that although she saw Bruce pick up the weight lifting object, she did not actually see him hit her with it. She also testified that other than the afternoon in the hospital following the assault and a return to the hospital to have her stitches removed, she did not have any further medical treatment for the injuries received during the assaults. During cross-examination of Doctor Bhatia, Bruce's counsel adduced testimony that although scalp and forehead injuries bleed freely, the bleeding from Long's injury could have been stopped with the simple application of pressure. Doctor Bhatia also testified that despite the presence of numerous delicate bones in the face, none of the blows to Long's face resulted in broken bones. During cross-examination of Patrick Yazzie, a Navajo Nation police officer, counsel adduced testimony that Long had previously indicated Bruce did not hit her with the shock absorber. Federal Bureau of Investigation Special Agent Oscar Ramirez testified on cross-examination that blood on the weight lifting object and the shock absorber had not been tested for DNA.
At the close of evidence and prior to closing arguments, Bruce requested that the district court instruct the jury on what the defense asserted was the lesser-included offense of assault by striking, beating, or wounding. See 18 U.S.C. § 113(a)(4). The government objected to the proposed instruction on the grounds that the offense had not been charged in the indictment and was not supported by the evidence. When the district court asked Bruce's counsel to point to evidence in the record supporting the requested lesser-offense instruction, the following exchange took place:
[Defense Counsel]: Your Honor, I think that the evidence is — there is some argument to be made about the nature of the injury. We're talking about an assault that resulted from a striking, beating, or wounding. It's a much less serious charge in terms of the consequences. However, it is still considered an assault. There is evidence that he did strike her, that he had beat on Hannalita Long. There is no clear indication that he understood that he intended the result of the serious injury, which was the cut to the forehead.
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