United States v. Crow, CR. 16-50148-JLV

CourtU.S. District Court — District of South Dakota
Docket NumberCR. 16-50148-JLV
Decision Date13 August 2018


CR. 16-50148-JLV


August 13, 2018



A jury convicted defendant Marlon Iron Crow of second degree murder. (Docket 109). Defendant filed post-trial motions. (Docket 114). He seeks a judgment of acquittal under Rule 29(c) of the Federal Rules of Criminal Procedure or, in the alternative, a new trial under Rule 33(a). Id.


The court limits its recitation to those facts necessary to resolve defendant's pending motions. In the subsequent legal analysis, the court includes additional facts as needed. The court relies primarily on the transcripts produced after trial, (Dockets 127, 129-32 & 134), as well as its recollection of the evidence presented at trial.

On November 11, 2016, Craig Charging Crow died in Porcupine, South Dakota, at the home of Nicole Morsette. It happened when Morsette, Jonathan Tenorio, L.T., Charging Crow and defendant were in the home. L.T. is the son of Morsette and Tenorio and was 12 years-old at the time; Morsette and defendant are half-siblings. (Docket 130 at pp. 49, 94).

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L.T. testified that on November 10, 2016, Morsette and Tenorio drank vodka with defendant. Id. at pp. 52-53. Everyone slept at the residence, L.T. remembered waking up on November 11 around 7 a.m. and the others got up a few hours later. Id. at pp. 55-56. L.T. testified the three adults began drinking vodka once they woke up and gathered in the dining room. Id. at pp. 57-58. After L.T. finished breakfast, Charging Crow and a woman named Delores arrived with vodka and joined the adults in the dining room. Id. at pp. 58-60. L.T. testified soon it was just his parents and him watching television together when Charging Crow and defendant came back to the residence with approximately eight cans of an alcoholic drink called Joose. Id. at pp. 61-65. Charging Crow, defendant, Morsette and Tenorio opened the cans of Joose in the kitchen, and L.T. observed they were intoxicated. Id. at pp. 67-68.

While the adults drank in the kitchen, L.T. heard Charging Crow say, "I will knock you out," to defendant. Id. at pp. 69-70. L.T. believed Charging Crow made the comment as a joke because he laughed when he said it. Id. at p. 70. Defendant responded, "Try it." Id. L.T. testified defendant went toward Charging Crow and the two began knocking items over and punching each other in the face. Id. at pp. 70-71. At a point in the fight, L.T. saw Charging Crow backing away and defendant continuing to punch his face. Id. at pp. 72-73. They made contact with a table, breaking it, and Charging Crow "gets knocked out" and fell to the floor. Id. at pp. 73-74. L.T. testified defendant "keeps on hitting" Charging Crow on the ground and L.T.'s parents failed to pull defendant away to stop him. Id.

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at p. 75. According to L.T.'s testimony, defendant put on boots, adjusted Charging Crow's body so it was flat on the floor and stomped on Charging Crow's chin area. Id. at pp. 76-77.1

Morsette testified she, defendant and Tenorio drank approximately half of a gallon of vodka on November 10, 2016. Id. at p. 96. On the next day, November 11, Morsette recalled Charging Crow and Delores arriving empty-handed before they left and came back with alcohol that they drank while L.T. watched television. Id. at pp. 98-99. Charging Crow and defendant brought Delores home. Morsette laid down with Tenorio and L.T. Later Charging Crow and defendant returned with cans of Joose. Id. at pp. 100-01. After Charging Crow and defendant entered the home, the adults were in the kitchen and Morsette remembered Charging Crow laughing and stating, "I bet I can knock you out, Marlon," and defendant responding, "Try it." Id. at pp. 103-04.

Morsette testified defendant approached Charging Crow and struck him in the face and the two proceeded to exchange blows until Charging Crow fell to the ground. Id. at pp. 105-06. When asked about a prior statement she made to law enforcement right after Charging Crow's death, Morsette indicated she stated defendant kicked and stomped on Charging Crow. Id. at pp. 110-11. She and Tenorio were unable to pull defendant

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off Charging Crow. Id. at p. 111. When Charing Crow did not respond to efforts to revive him, Tenorio called 911. Id. at p. 114.2

Leonard Her Many Horses, a Lieutenant with the Oglala Sioux Tribe Department of Public Safety, responded to Morsette's home. Id. at p. 125. The Lieutenant described Charging Crow as "bluish" and noticed he was not breathing. Id. at p. 126. The Lieutenant observed some blood on Charging Crow's face, "a cut on his lip and just general swelling or bruising." Id. at p. 127.

A Special Agent with the Federal Bureau of Investigation ("FBI"), Mark Lucas ("SA Lucas"), recorded an interrogation of defendant after Charging Crow's death. (Exhibit 138). The recording was a trial exhibit played for the jury. (Docket 130 at p. 247). In the interrogation, defendant stated Charging Crow struck him first and he wrestled and punched Charging Crow to defend himself. (Exhibit 138).3

The jury heard testimony from Donald Habbe, M.D., the forensic pathologist who conducted Charging Crow's autopsy. Dr. Habbe determined Charging Crow suffered a tear to his basilar artery, which resulted in a subarachnoid hemorrhage causing Charging Crow's death.

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(Docket 129 at pp. 59-60).4 In Dr. Habbe's experience, a fatal injury to the basilar artery is rare. Id. at pp. 59-61. Dr. Habbe explained "this traumatic subarachnoid hemorrhage" usually occurs when "[y]ou have an intoxicated individual; they are in some type of altercation; it's typically a bar fight. And they take a blow to the head, and after that blow they drop, and they are dead almost immediately, or very shortly after that, that that blow is inflicted." Id. at p. 61. Dr. Habbe testified Charging Crow's face had a "split lip" from a "blunt force injury" and "a scrape on his chin." Id. at pp. 63-64. When he internally examined Charging Crow's head, Dr. Habbe discovered "four areas of hemorrhage or bleeding in the subcutaneous tissues of the scalp." Id. at p. 69. Dr. Habbe located these injuries on the left side of the head and opined blunt force trauma caused them. Id. at p. 70. Dr. Habbe testified blunt force trauma encompasses punches, kicks and hitting the ground after falling. Id. at pp. 70 & 73; (Docket 130 at p. 23).

Defendant called Brian Levenson, R.N., to the stand. Once Charging Crow arrived at the hospital in Pine Ridge, South Dakota, Nurse Levenson treated him. (Docket 130 at p. 269). Nurse Levenson testified the external injuries to Charging Crow's lip and chin could be caused by the intubation tube used on Charging Crow before he reached the hospital. Id. at pp. 272-73. Based on Nurse Levenson's training and experience, he opined

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Charging Crow's injuries were the result of falling. Id. at 280-81. Charging Crow's high blood alcohol concentration was central to Nurse Levenson's opinion. Id. Nurse Levenson's other opinion on Charging Crow's cause of death was he drowned on his own vomit, and Nurse Levenson reached that conclusion because the weights of Charging Crow's lungs at the autopsy were higher than usual. Id. at pp. 283-84.

The government called Bernadine Blue Bird as a witness; she is an Assistant Enrollment Director for the Oglala Sioux Tribe. Id. at p. 156. She testified defendant is an enrolled member of the federally recognized Oglala Sioux Tribe. Id. at pp. 157-58. The government also called Lionel Weston, who works at the Bureau of Indian Affairs Land Operations within the United States Department of the Interior. Id. at p. 164. He testified Morsette's home is in Indian country, within the exterior boundaries of the Pine Ridge Indian Reservation. Id. at p. 165.


I. Rule 29(c) motion

Defendant moved for a judgment of acquittal at the conclusion of the government's case-in-chief and again later in trial. (Dockets 130 at pp. 207-11 & 131 at p. 80). The court denied both motions, finding that granting the motion would require weighing the credibility of L.T. and Morsette. (Dockets 130 at pp. 211-17 & 131 at p. 80). Defendant renews his Rule 29 motion. (Dockets 114 & 139). Defendant timely filed the Rule 29(c) motion within 14 days of the verdict. Fed. R. Crim. P. 29(c)(1).

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Fed. R. Crim. P. 29(c) gives the district court authority to set aside a guilty verdict and enter an acquittal upon a defendant's post-trial motion. "A district court has very limited latitude in ruling upon a motion for judgment of acquittal." United States v. Baker, 367 F.3d 790, 797 (8th Cir. 2004) (citation and internal quotation marks omitted). "A motion for judgment of acquittal should be granted only if there is no interpretation of the evidence that would allow a reasonable jury to find the defendant guilty beyond a reasonable doubt." United States v. Boesen, 491 F.3d 852, 855 (8th Cir. 2007) (citations and internal quotation marks omitted). This standard is very strict, and the court should not overturn a jury verdict lightly. Id.

The district court must enter an acquittal if the evidence presented at trial is insufficient to sustain a conviction. Id. Evidence may be direct or circumstantial. Baker, 367 F.3d at 798. "Evidence supporting a conviction is sufficient if any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Boesen, 491 F.3d at 856 (citation and internal quotation marks omitted). The district court must not weigh the evidence or assess the credibility of witnesses. Baker, 367 F.3d at 797; see also Boesen, 491 F.3d at 857 ("In ruling on a motion for a judgment of acquittal, the role of the court is not to weigh the evidence . . . but rather to determine whether the Government has presented evidence on each element to support a jury verdict.") (citations and internal quotation marks omitted) (ellipses in...

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