U.S. v. Iron Shell
| Decision Date | 24 October 1980 |
| Docket Number | No. 80-1083,80-1083 |
| Citation | 633 F.2d 77,55 A.L.R.Fed. 664 |
| Parties | , 7 Fed. R. Evid. Serv. 269 UNITED STATES of America, Appellee, v. John Louis IRON SHELL, Jr., Appellant. |
| Court | U.S. Court of Appeals — Eighth Circuit |
Stanley E. Whiting, Day, Grossenburg & Whiting, Winner, S. D., for appellant.
Terry L. Pechota, U. S. Atty., Sioux Falls, S. D., for appellee.
Before HEANEY, BRIGHT, and STEPHENSON, Circuit Judges.
Defendant, John Louis Iron Shell, appeals from a jury conviction 1 of assault with intent to commit rape in violation of the Major Crimes Act, 18 U.S.C. § 1153 (1970). Iron Shell raises ten issues on appeal. The five primary questions are two evidentiary rulings concerning hearsay, the defendant's allegation that the district court should have instructed the jury on a lesser included offense, an attack on the jurisdictional scheme contained in the Major Crimes Act as a violation of equal protection because it prevents the use of instruction of a lesser included offense that would be available to a non-Indian defendant, and an attack on the sufficiency of the evidence to support the conviction. We affirm the jury conviction.
The indictment in this case arose out of the defendant's acts on July 24, 1979, in the community of Antelope, which is within the Rosebud Indian Reservation and near Mission, South Dakota. 2 The defense conceded at trial that Iron Shell had assaulted Lucy, a nine-year-old Indian girl. The key questions at trial concerned the nature of the assault and the defendant's intent.
At the time of the assault defendant Iron Shell was living in the Antelope community in the Beth Dillon home. He was staying there with his girlfriend, Jeanne Brave, who is Dillon's cousin. During the course of the day preceding the assault Iron Shell, in the company of friends, consumed considerable alcoholic beverages.
In the late afternoon William Burning Breast drove the defendant home. When they arrived at the Dillon house, the defendant was either asleep or had passed out. Breast and Mike Dillon, Beth Dillon's fifteen-year-old son, helped wake the defendant. Steve Mizner, a seventeen-year-old who also lived at Beth Dillon's house, helped the defendant out of the car and into the house. Mike and Steve testified that the defendant began to walk under his own power as he approached the front door. The defendant reached the Dillon house about 5:45 or 6:00 p. m. He talked and roughhoused briefly with Mike and Steve, and asked one of them to cook a hamburger. He then abruptly asked where his girlfriend Jeanne Brave was. When Mike said she was in St. Francis, the defendant was angered and left the house. He walked to his mother's home which is in the same neighborhood. He returned in about five minutes, ate the hamburger and again asked where Jeanne Brave was. When told again that she was not there, the defendant said you can tell her to go to hell and he kicked the door open and left for the second time.
Steve watched the defendant cross the highway in front of the Dillon house and enter the trail leading to his mother's house. The defendant staggered somewhat and retraced his steps several times. Because of his strange behavior, Steve called Mike to the window to watch the defendant. Both Mike and Steve testified that they saw the defendant approach Lucy who was near some cherry bushes just off the trail. Both saw the defendant grab Lucy and pull her down into some tall bushes. Steve testified he heard Lucy scream. Mike rode his bicycle to the spot where the defendant grabbed Lucy but couldn't see the girl and assumed she had escaped. Mike rode back to tell Steve, and the two returned to the bushes together. They then discovered that Lucy had not escaped. Mike testified that the defendant had his arm around Lucy and was trying to make her put her arm around him. The two boys alerted the neighbors.
Mae Small Bear was told by her granddaughter at about the same time that Lucy was "crying and hollering" in the bushes behind Small Bear's house. Small Bear walked to the bushes and saw Lucy lying on her back with the defendant lying beside her on his side. Lucy's jeans were down to her ankles and she was crying. Mae Small Bear testified that the defendant tried to hide Lucy by grabbing her legs. The defendant then ran to the end of the bushes, and when Small Bear returned to the house he ran across the highway.
At about this point Pam Lunderman arrived. She testified that she saw Lucy come out of the bushes pulling up her pants and crying. Lucy told Lunderman, "that guy tried to take my pants off." 3 Lunderman testified that Lucy had weeds on her back and head, that her hair was disheveled and that her face was swollen on one side. Both Steve and Mike saw Lucy come out of the bushes and confirmed Lunderman's testimony. Mike told the jury that Lucy was "crying hard," looked scared and that her jeans were down to her knees. Steve said he saw Lucy coming out of the bushes pulling up her pants and that she was crying. The time of the assault is uncertain, but it was somewhere between 6:00 and 6:30 p. m.
Lunderman took Lucy to the police station in Mission and was directed to the magistrate's office back in the Antelope community, where a complaint was signed. During this trip Lucy appeared scared and was still crying. A police car was dispatched from Rosebud, South Dakota, to Antelope, a distance of about eleven miles. Officer Noah Tucker, Bureau of Indian Affairs Law Enforcement, testified that his office received a report at about 6:45 p. m. Officer Tucker drove to the Dillon house to arrest the defendant. Another officer, Barbara Marshall, was sent to interview Lucy. Officer Tucker, along with a tribal policeman, found the defendant in the Dillon house asleep in his bedroom lying on his back. They noticed a knife underneath the defendant. They arrested him. The defendant was coherent and recognized Officer Tucker. He walked out under his own power.
Meanwhile, Officer Marshall conducted an interview with Lucy which began at about 7:15 p. m. in the magistrate's home and ended at about 7:30 p. m. Officer Marshall, according to her testimony, asked Lucy a single question: "What happened?" In response Lucy related the following. Lucy said her assailant grabbed her and held her around the neck and told her to be quiet or he would choke her. He told her to take her pants down and when she refused, he pulled them partially off. Lucy told Officer Marshall, "he tried to what you call it me." 4 Lucy also said that he had his hands between her legs. Officer Marshall recounted Lucy's statement in full at trial. 5
Officer Marshall also testified that Lucy was not hysterical nor was she crying, but that her hair was messed and had leaves in it, that she appeared nervous and scared, and that her eyes were red.
Dr. Mark Hopkins, a physician with the Indian Health Service, examined Lucy at about 8:20 p. m. on the night of the assault. During his examination the doctor elicited a series of statements from Lucy concerning the cause of her injuries. Dr. Hopkins was only aware that Lucy was allegedly a rape victim and was not told of the details surrounding the assault. During the examination, in response to questions posed by the doctor, Lucy told Dr. Hopkins she had been drug into the bushes, that her clothes, jeans and underwear, were removed and that the man had tried to force something into her vagina which hurt. She said she tried to scream but was unable because the man put his hand over her mouth and neck. 6 The doctor, over objection, repeated Lucy's statement at trial.
Dr. Hopkins' examination also revealed that there was a small amount of sand and grass in the perineal area but not in the vagina. He also found superficial abrasions on both sides of Lucy's neck and testified that they were consistent with someone grabbing her but qualified his statement by adding that he could not absolutely determine that they were so caused. Dr. Hopkins also testified that there was no physical evidence of penetration, the hymen was intact and no sperm was located.
Lucy was able to add little and could only partially confirm the above record at trial. Lucy, a nine-year-old, was able to answer a number of preliminary questions demonstrating her ability to understand and respond to counsel but was unable to detail what happened after she was assaulted by the defendant. She did testify that she remembered something happening near the bushes and that a man had pushed her down. Lucy also said at trial that the man told her if she "didn't shut up he would choke me." In response to a series of leading questions she confirmed that the man had put his hand over her neck, hit her on the side of the face, held her down, taken her clothes off and that Mae Small Bear had scared the man, making him leave. 7 On cross-examination defense counsel did not explore any of the substantive issues, nor did he examine Lucy concerning the statement she made to Dr. Hopkins and Officer Marshall, although he had the opportunity.
The defendant raises ten issues on appeal, which he alleges require a new trial. We separately examine these contentions.
Defendant challenges the admission of statements made by Lucy to Dr. Hopkins during his examination. The prosecution offered this testimony admittedly as hearsay but within the exception expressed in Rule 803(4). The rule states:
The following are not excluded by the hearsay rule, even though the declarant is available as a witness:
(4) * * * Statements made for purposes of medical diagnosis or treatment and describing medical history, or past or present symptoms, pain, or sensations, or the inception or general character of the cause or external source thereof insofar as reasonably pertinent to diagnosis or treatment.
Fed.R.Evid. 803(4). The defendant argues that the questions...
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