U.S. v. Looking, 97-3352

• Decision Date: 09 September 1998
• Docket Number: No. 97-3352,97-3352
• Citation: 156 F.3d 803
• Parties: UNITED STATES of America, Appellee, v. Lonnie Horse LOOKING, Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 803

156 F.3d 803

UNITED STATES of America, Appellee, v. Lonnie Horse LOOKING, Appellant.

No. 97-3352.

United States Court of Appeals Eighth Circuit.

Submitted May 15, 1998.

Decided Sept. 9, 1998.

Al J. Arendt, Pierre, SD, argued, for Appellant

Thomas J. Wright, Assistant United States Attorney, Pierre, SD, argued, for Appellee.

Before McMILLIAN, NOONAN ¹ and MORRIS SHEPPARD ARNOLD, Circuit Judges.

McMILLIAN, Circuit Judge.

Defendant Lonnie Horse Looking appeals from a final judgment entered in the United States District Court for the District of South Dakota, ² upon a jury verdict, finding him guilty of one count of assault resulting in serious bodily injury in violation of 18 U.S.C. §§ 113(a)(6), 1153; one count of assault resulting in substantial bodily injury to a child in violation of 18 U.S.C. §§ 113(a)(7), 1153; and two counts of aggravated sexual abuse in violation of 18 U.S.C. §§ 1153, 2241(c). United States v. Horse Looking, No. CR96-30102-01 (D.S.D. Aug. 21, 1997) (Judgment). The district court sentenced defendant under the federal sentencing guidelines to 405 months imprisonment, 5 years supervised release, a special assessment of $200.00, and restitution to be determined at a later date. For reversal, defendant argues that the district court erred in (1) denying his motion to suppress self-incriminating statements; (2) requiring a defense witness to be available to be interviewed by the government; (3) refusing to admit defendant's calendar into evidence; and (4) denying defendant's motion for judgment of acquittal. For the reasons discussed below, we affirm the judgment of the district court.

Jurisdiction

The district court had jurisdiction pursuant to 18 U.S.C. §§ 1153, 3231. Defendant timely filed a notice of appeal under Rule 4(b) of the Federal Rules of Appellate Procedure. Jurisdiction is proper on appeal under 28 U.S.C. § 1291.

Facts

This case involves the depraved assault and aggravated sexual abuse of a six-month-old child by defendant, her biological father. The following summary of facts is presented in the light most favorable to the government. All relevant criminal events occurred in St. Francis, South Dakota, in Indian country. ³

Around January 5, 1996, the time charged in the indictment, defendant was approximately twenty-one years old, residing with his common-law wife, Nicole Bear Heels, in a small one-bedroom house in St. Francis. At that time, the couple had two children-the victim and a son. (Bear Heels later had a third child by defendant born after the trial). Between November 21, 1995, and January 6, 1996, defendant was unemployed and watched the two children while Bear Heels worked full time. Defendant did not routinely have friends over to the house, and there were no unfamiliar men or unfamiliar cars ever seen at the house. The couple had only one functional car at this time.

Shortly after defendant moved in with his family around November 1995 and assumed full-time responsibility for his two children, relatives began noticing visible bruises and scratches on the victim. ⁴ In late December of 1995 Bear Heels noticed that the victim would hold her leg up like it hurt her and had difficulty standing. No one had noticed any of these problems before defendant moved in.

On Friday, January 5, 1996, Bear Heels was scheduled to work from 4:00 p.m. until midnight. At approximately 3:30 p.m., immediately prior to leaving for work, Bear Heels changed the victim's diaper and did not notice anything unusual about the victim's vaginal or anal areas. Bear Heels returned from work around 1:00 a.m. Saturday morning. At around 10:00 a.m., Bear Heels changed the victim's diaper and noticed several bruises around her vaginal and anal areas. Alarmed, Bear Heels immediately woke up defendant and demanded an explanation. Defendant responded that he must have bounced the victim on his knee too hard. The bruises had not yet peaked and would develop throughout the day into what an orthopedic surgeon would later testify to be "deep bruises suggestive of marked pressure or trauma." Until this point, the victim was a normal, healthy baby. Bear Heels had never seen such bruises on the victim any other time that the victim was in defendant's care.

Despite her observation of the bruises, Bear Heels chose not to seek medical care for the victim. At about noon on Saturday, January 6, 1996, Bear Heels left the house and took her oldest child with her, leaving the victim alone with defendant. Some time in the early evening before Bear Heels returned, the victim stopped breathing. Defendant was the only individual in the house with the victim when she stopped breathing.

The victim was taken in an ambulance to the Indian Health Service (IHS) hospital where Dr. Gunther Ruckl, a pediatrician with a fellowship in developmental pediatrics, treated her. Dr. Ruckl found that the victim had a decreased level of consciousness, that she was somnolent, and that she showed intermittent short seizure activity. He performed several procedures, including a spinal tap, and, upon seeing the victim's bruises, immediately suspected abuse. The spinal tap showed that the victim's fluid was cloudy, which Dr. Ruckl attributed to cerebral trauma. The victim's vaginal and anal openings were "severely bruised" and the victim's anal opening was so damaged that it could not constrict normally. Dr. Ruckl testified that defendant did not mention that anyone other than himself had recently watched the victim. Bear Heels testified that defendant was extremely nervous when he was talking with Dr. Ruckl.

Investigator Dennis Quigley of the Rosebud Sioux Tribal Police Station arrived at the hospital that evening. Dr. Ruckl told Quigley that the victim's deep vaginal and anal bruises were consistent with sexual abuse within the last 24 hours. Quigley then asked defendant who had babysat the victim during that time. Defendant told Quigley that he (defendant) was the only person who had watched the victim the afternoon and evening of Friday, January 5, 1996, and early Saturday, January 6, 1996. Defendant also told Quigley that no one else had recently babysat the victim. Defendant further stated that, on January 5, 1996 (the previous day), the victim did not have vaginal and anal bruises. Quigley noted that defendant did not seem to want to be near the victim or Bear Heels at the hospital. After speaking with Quigley, defendant asked a relative of Bear Heels to retrieve his clothes from the house because he thought that he would not be able to return to the house after this incident.

At or about 2:00 a.m., Sunday, January 7, 1996, the victim was flown from the IHS Hospital to Sioux Valley Hospital in Sioux Falls where Dr. Rita Rabenburg, a pediatrician, and a team of pediatric nurses treated the victim. Several of the pediatric intensive care nurses immediately gasped "Oh my God" when first seeing the victim's now deep purple vaginal and anal bruises. At trial, several doctors testified that the victim's bruises were consistent with recent forced sexual abuse. Dr. Rabenburg testified that, when she saw how bad the vaginal and anal bruises were, she was "shocked." She stated that the bruising appeared to be approximately 24-36 hours old when she initially examined the victim. The victim was subjected to a battery of tests, including the administration of a rape kit. Dr. Rabenberg diagnosed three skull fractures, a subdural hematoma, an ischemic injury, perineal bruising, multiple long bone fractures, retinal hemorrhaging, and bronchiolitis. Sperm was found in the victim's vaginal area and inside her anus. DNA testing to identify the sperm donor was unsuccessful. The victim's hymen was not broken; however, there was medical testimony that that is not unusual on a six-month-old victim.

Over the course of the next two days, the victim was seen by a number of physicians, including orthopedic surgeon Dr. Daniel MacRandall, who performed a number of x-rays, CAT scans, and bone scans. The medical tests confirmed that three separate parts of the victim's skull had "acute" fractures that were inflicted within one day of her arrival at the hospital in Sioux Falls. In addition, both Dr. Robert DeClark, a radiologist, and Dr. MacRandall testified that the x-rays and bone scans showed that seven of the eight long bones in the victim's body were fractured. Dr. Rabenburg testified that the victim's skull fractures were life threatening. The doctors further testified that many of the fractures in the victim's long bones were in different stages of healing, indicating that the fractures had not all been inflicted at the same time. Dr. MacRandall testified that the skull fractures were approximately one day old as of Sunday, January 7, 1996, while the long bone fractures were approximately two to three weeks old. He labeled the fractures as "major fractures," and, along with Dr. Rabenburg, testified that the victim's injuries were consistent with "battered child syndrome." Drs. Rabenburg and DeClark also stated that they saw no evidence that the victim was suffering from any kind of "brittle bone" disease that could have caused such massive fractures.

Additional testing revealed that the victim had other problems. She had apparently been shaken so hard that she suffered a stroke, and had lost the ability to grasp things with her left hand. The doctors in Sioux Falls also discovered that the victim had great difficulty tracking objects with her eyes. Dr. Charles Mohler, an eye surgeon, found no evidence that the victim was born with or had developed any kind of natural eye disease. He determined that the victim had conditions consistent with "shaken baby syndrome." His examination of the victim revealed that the retinas in both of her eyes had hemorrhaged. He testified that this hemorrhaging was consistent with a severe shaking. In fact, the right eye of the victim had hemorrhaged so severely than an operation was performed on March...