*1 contends, erroneous, or, as the State correct America, Appellee, was UNITED STATES there no because we need not decide binding on the court. Be- agreement plea imposed including the cause the sentence SHELL, Jr., Appellant. John Louis IRON far less than mandatory parole term was No. 80-1083. imprisonment Wil- period maximum receive, Appeals, he he could Court of liams warned if prejudiced Eighth even would not have been Circuit. parole term had to mention the
judge failed 19, 1980. May Submitted Indeed, be Bach- altogether. 24, Sept. 1980. Decided Accordingly, we reverse case. ner Oct. 1980. Rehearing Denied with to Emanuel Williams’ respect order plea August 1974. guilty
IV petitioners respect
With Southall Williams, the alterna
and Lawrence State’s Baker position is that established new
tive unexpected rule of law entitled was therefore application and
prospective
erroneously guilty pleas here to en applied prior March date
tered raised this
Baker decided. State first time a Motion to
issue I. Judge
Reconsider in Williams Marshall
rejected argument grounds on the unexpected did create a new and
Baker law even it
rule of and that if it had would application under
be entitled to retroactive test set forth in balancing Stovall
Denno, U.S. F.Supp.
L.Ed.2d at 105-108. 1199. See agree reasoning
We with both the and con thorough Judge opin
clusion of Marshall’s adopt
ion on this and therefore it as issue
our own. judgment respect is reversed August guilty plea petitioner respects
Emanuel Williams and all other
affirmed.
7Q *3 friends, company in the consumed con- beverages. siderable alcoholic Burning In the late afternoon William When Breast drove the defendant home. Whiting, Day, Grossenburg E. & Stanley house, at the Dillon the de- arrived D., Winner, appellant. for Whiting, S. asleep passed or had out. fendant was either Falls, Pechota, Atty., U. Sioux Terry L. S. Dillon, Beth Dillon’s fif- Breast and Mike D., appellee. S. son, wake the helped defend- teen-year-old Mizner, seventeen-year-old ant. Steve BRIGHT, HEANEY, Before and STE- house, at Beth Dillon’s who also lived PHENSON, Judges. Circuit helped the defendant out of the car Mike and testified into the house. Steve STEPHENSON, Judge. Circuit *4 began to walk under his that the defendant Defendant, Shell, appeals John Louis Iron approached the front door. power own as he from a conviction1 of assault with jury the Dillon house The defendant reached rape intent to commit in violation and p. or 6:00 m. He talked about 5:45 Act, Major Crimes U.S.C. § Steve, and roughhoused briefly with Mike appeal. Iron ten on Shell raises issues hamburg- a and asked one of them to cook primary questions evidentiary five are two girl- abruptly He then asked where his er. rulings concerning hearsay, the defendant’s friend Jeanne Brave was. When Mike said allegation that the district court should Francis, was she was in the defendant St. have a jury instructed on lesser includ He walked to angered and left house. offense, jurisdictional ed an attack on the his mother’s home which is in the same in Major scheme contained Crimes Act neighborhood. He returned in about five equal protection as a violation of because it minutes, hamburger again ate the prevents the use of instruction of lesser asked where Jeanne Brave was. When told included offense that would be available to there, the again that she was not defendant defendant, a non-Indian and an attack on go her to to hell and he you said can tell sufficiency support of the evidence to open and left for the second kicked the door We affirm the convic conviction. time. tion. watched the defendant cross Steve in this case arose out indictment of the Dillon house and highway in front 24, 1979, July the defendant’s acts on in the leading enter the trail to his mother’s community Antelope, which is within the somewhat staggered house. The defendant Rosebud' Reservation Indian and near Mis steps Be- and retraced his several times. sion, Dakota.2 The defense conceded South behavior, strange cause his Steve called Lucy, at trial that Iron had assaulted Shell Mike window watch the to the defend- a nine-year-old girl. key ques Indian ant. Both Mike and Steve testified tions at trial concerned the nature of the approach Lucy saw the defendant who assault and the defendant’s intent. cherry just off the near some bushes At the time of the assault defendant Iron grab Lucy trail. Both saw the defendant living Antelope community Shell was in the pull her down into some tall bushes. staying the Beth Dillon home. He was Lucy testified he heard scream. Steve Brave, girlfriend, there with his Jeanne bicycle spot Mike rode his to the where the During who is Dillon’s cousin. the course grabbed Lucy but couldn’t see Shell, day preceding girl escaped. the assault Iron assumed she had Porter, parties stipulated 1. The Honorable Donald J. 2. The the defendant attempted Judge alleged rape States District for the District of South an Indian and that Dakota, thereby presiding, territory bringing sentenced the defendant occurred on Indian imprisonment jurisdic- years and six the defendant within federal criminal seventeen months. tion. See 18 U.S.C.
«1 Tucker, Steve, Noah Bureau of Indian Af- and the two Officer Mike rode back to tell Enforcement, They then together. the bushes testified that his returned to fairs Law escaped. had not Lucy p. discovered at about 6:45 m. report office received the defendant had his Mike testified to the Dillon house to Officer Tucker drove Lucy trying and was to make arm around officer, Another Bar- arrest the defendant. boys him. The two put her her arm around Marshall, Lucy. was sent to interview bara neighbors. alerted the Tucker, along police- with a tribal Officer man, in the Dillon found the defendant grand- her Mae Bear was told Small lying bedroom on his asleep house his Lucy the same time that daughter at about They a knife underneath the in the bushes back. noticed “crying hollering” They house. Bear arrested him. The de- behind Bear’s Small defendant. Small Lucy lying to the bushes and saw recognized walked was coherent and' Offi- fendant lying her back with the defendant beside Tucker. He walked out under his own cer Lucy’s jeans were down to her on his side. power. crying. her and she was Mae Small ankles Meanwhile, Marshall conducted Officer Bear testified that the defendant tried to began which an interview with legs. her The de- Lucy by grabbing hide magistrate’s in the home p. about 7:15 m. bushes, fendant then ran to the end of the m. p. at about 7:30 Officer and ended and when Bear returned to the house Small Marshall, testimony, according to her asked highway. he ran across the happened?” “What single question: *5 point At about this Pam Lunderman ar response Lucy following. In related the Lucy she saw rived. testified that She her and Lucy grabbed her assailant said up pants her pulling come out of the bushes and told her to be held her around the neck Lunderman, “that crying. Lucy and told he choke her. He told her to quiet or would pants off.”3 guy my tried to take Lunder refused, when she down and pants take her Lucy had weeds on her man testified that pulled partially Lucy he them off. told head, her hair was disheveled back and that Marshall, you “he tried to what call Officer face was swollen on one side. and that her Lucy also said that he had his it me.”4 Lucy Both and Mike come out of Steve saw legs. hands between her Officer Marshall confirmed Lunderman’s tes the bushes and in full at trial.5 Lucy’s recounted statement timony. Lucy Mike told the that was Lucy testified that Marshall also Officer hard,” “crying looked scared and that her crying, was she but hysterical was not nor to her
jeans were down knees. Steve said was messed and had leaves in that her hair the bushes Lucy coming he saw out of scared, it, appeared nervous and that she she pulling pants cry her and that was up_ eyes were red. and that her uncertain, is ing. The time of the assault but it was somewhere between 6:00 and physician a with the Hopkins, Dr. Mark p. 6:30 m. Service, Lucy Health examined Indian p. night m. on the of the assault. about 8:20 Lucy police
Lunderman took to the sta- elicited a During his examination the doctor tion in Mission and was directed to the concerning Lucy series of statements from magistrate’s Antelope office back in the injuries. Hopkins Dr. was the cause her complaint signed. where a was community, Lucy allegedly rape aware that was a During trip Lucy appeared only scared and sur- victim and was not told of the details crying. police was still A car was dis- Rosebud, Dakota, During the examina- patched rounding from to the assault. South tion, response questions posed by a distance of about eleven miles. to Antelope, Lucy objected Marshall testified that did not 3. At trial this statement was to as 5. Officer objection hearsay. spontaneously inadmissible was over- to describe the incident start manner, appeal. but, halting conveyed ruled and the issue is not raised on in a the facts as detailed above. during 4. This statement was revealed cross-ex- amination defendant’s counsel. said at that the man Lucy down. also trial doctor, Hopkins had been Lucy Dr. she told he bushes, clothes, up “didn’t shut jeans that her told her if she drug into the of lead- a series response choke In underwear, were removed and that me.” the man something ing into her she confirmed questions to force man had tried neck, hit her on said over put She she tried had his hand her vagina which hurt. down, face, taken put because the man her scream but unable held was side Bear mouth and neck.6 The his hand over her her off and that Mae Small clothes doctor, repeated Lucy’s man, objection, making over him leave.7 had scared the at trial. statement counsel did defense On cross-examination issues, of the substantive explore any not Hopkins’ examination also revealed Dr. concerning the nor did he examine there small amount of sand was a Hopkins statement she made Dr. area but not in grass perineal Marshall, op- had the although he Officer superficial He abrasions vagina. also found portunity. Lucy’s neck and testified on both sides of grabbing intact and no cal evidence of kins also testified that adding what partially confirm strating spond to remembered the mine that number Lucy, nine-year-old, defendant. happened her her but counsel they were were consistent with able to preliminary he could something happening near the ability sperm penetration, after qualified She the above record at trial. but was unable to detail add little to understand and was located. she was so caused. Dr. did was able there questions absolutely testify his was statement assaulted to answer hymen could no that she someone demon- physi- deter- Hop- re- *6 by offered this during his examination. The statements separately examine which say Rule hearsay Defendant The defendant available but within (4) 803(4). [*] he A. * following alleges rule, ** Dr. as a witness: made [*] testimony challenges even Hopkins’ the exception raises Statements made require by Lucy rule [*] are not excluded these contentions. though states: ten admittedly as hear- [*] Testimony issues new the declarant admission expressed in Dr. [*] prosecution trial. Hopkins for appeal, by the [*] pur- We diagnosis or treatment poses man had her of medical pushed bushes and that a hand, put put his jury, did he presence did he his the doctor Where Q 6. Out the hap- your testified he first asked “what on neck? hand pened” didn’t answer. He asked and she Yes A any pain pointed and to you get whether was in she she the face? hit on the side of Did Q any- vaginal He asked if hurt her area. she A Yes. Hopkins else answer. Dr. down, where and she didn’t you pushed he hold did When he Q again happened” “what said asked you down? drug doctor she had been into the bushes. The A Yes. then asked “had taken her clothes if the man crying? you start Did Q yes, off.” She and then related the facts said A Yes. Hopkins set out that he above. Dr. testified can, you phrase As as THE COURT: much patient, “dragging “badgering” the nor your way any questions unnec- in a to avoid out,” asking “simple ques- information but was essary leading. tions.” you happened had else when he What Q down, say anything you, Lucy; he to do did sample following representative 7. The is a you remember? Lucy: prosecutor’s the direct examination of hesitation) (Long A pushed What man do he did the when Q say you you, to tell me? he can What did Q down, you Lucy? said? what he Tell me hesitation) (Long A hesitation) (Long A What did he do? Q you do that me? for Could Q hesitation) (Long A A Yes. any you place? Did he hurt Q Okay, what tell me he said? Q (Long hesitation) A up choke me. shut he would A If I didn’t you Do that? remember Q hesitation) (Long A Rules, Advisory Proposed Committee on history, past or or of describing medical sensations, (West 1975); or pain, or present symptoms, p. 585-86 Rule 28 U.S.C.A. character of the inception general or 803(4)[4] 11 Moore’s Federal Practice § source thereof insofar cause or external (1976); Berger, Weinstein’s Weinstein & diagnosis or pertinent to reasonably as 803(4) Rule ad Evidence treatment. (1) medical types mits three of statements: 803(4). argues Fed.R.Evid. sensations, history, (2) past present or Hopkins Dr. questions asked cause of the disease (3) inception general or response received in and the information are admissible injury. types All three or “reasonably perti- were not questions those “reasonably pertinent where are or treatment. The de- diagnosis nent” to changed The rule diagnosis or treatment.” Hopkins’ question in stresses Dr. fense First, prior points. law in two main Lucy whether man had which he asked approach by al adopted expansive rule an that this suggests taken her clothes off and lowing concerning past symp statements one in the role of an investi- was asked the cause which related to toms and those crime, rather seeking to solve the gator, Second, the rule abolished injury. treating diagnosing pa- or than a doctor the doctor who is the distinction between The defendant also asserts that tient. purpose of treatment and consulted for have been the doctor’s examination would diagnosis purpose an examination for the same whether or not this extra information refers to a doctor only; usually the latter argues had been received. defense testify as a who is consulted in order to point his claim that supports Berger, supra, witness.8 See Weinstein & pertinent to treatment questions were not at 803-125. they had no diagnosis or because affect Lastly,
the doctor’s examination. the de- Lucy’s primarily fall statements urges employed fendant that the doctor was 803(4).9 category within the listed third purpose qualifying as an specific for question is whether these state key as such his expert testimony witness and pertinent diagno suspect. reasonably be more ments were should behind the sis or treatment. The rationale 803(4) significantly It is clear that Rule upon stated. It focuses rule has often been prior practice concerning admis- liberalized patient’s upon relies patient purposes of statements made for sibility the truth because di diagnosis strong *7 majori purpose explaining case circuit had followed the law. This limited of the basis of ty prevented testimony rule which admission prove opinion in order to the truth an and not injury concerning con the cause of the as not This distinc of the out-of-court declarations. nected with treatment and excluded statements rejected by the federal rules. tion was likewise physician patient who examined the made to solely Advisory Proposed Notes of Committee testifying. purpose of Aetna Life for the Rules, p. (West 585-86 Rule U.S.C.A. (8th Quinley, Ins. Co. v. 87 F.2d Cir. 1975). 1937) (statements injury); regarding cause of Nickle, 372, 373-74 United States v. 60 F.2d Lucy Hopkins said she was 9. Dr. testified that (8th 1932) (treating non-treating dis Cir. vaginal experiencing pain in area. This her tinction). generally States v. See United Coch expression present symptom of a falls within ran, (8th Cir.), cert. 475 F.2d 1083-84 803(4) category the second and would also denied, 38 L.Ed.2d hearsay excepted be from the rule under rule Walker, (1973); Lycon 803(3) existing physical covering condi- a then (8th 1960); Krug v. Mutual Benefit Health Cir. 803(3). The remainder of tion. Fed.R.Evid. Ass’n, (8th Accident Cir. & Lucy’s general statement concerns the charac- 1941); Annot., 37 ALR3d 778 These injury. ter and nature of the cause of the Be- they may longer controlling cases are no but case, in is cause of the result we reach this it provide authority persuasive within the bound necessary 803(4) analyzing to discuss distinction aries of when whether state reasonably diagnosis length. pertinent ments are to had also held that a treatment. Some courts while the latter would and treatment depend part sis will or treatment agnosis ever, seldom, sufficiently related.10 if be says. thought It is patient what the upon Nick, 604 F.2d guarantees motive the declarant’s See that 1979). Lucy’s All of state- sufficiently to allow an ex- Cir. trustworthiness of the rule scope Meaney v. ments were within the hearsay rule. See ception to the physical her (2d were related to States, because a motive treatise, and were consistent with Weinstein, suggests condition in his Judge age pa- treatment. The promote He writes that “a to policy ground. another finding that against mitigates as the basis tient also enough to serve fact reliable the tra- were not within enough Lucy’s reliable to statements diagnosis for a is also rule. The trial Weinstein & ditional rationale escape hearsay proscription.” on this factor emphasis principle placed special This court Berger, supra, at 803-129. important it is to find that decisions are and we likewise that life and death recognizes holding. such in reliance on facts our by physicians made should have sufficient trustwor- and as such examination outside During an extensive in a court of law. thiness to be admissible jury, Hopkins ex- Dr. presence underly- closely parallels This that rationale relevancy ques- of his plained in detail the ing suggests a similar test rule 703 and diagnosis and treat- tions to the task of apply, namely-is type should this fact of a that a discussion of ment. He testified upon by experts par- in a reasonably relied pro- to injury important cause of the Fed. forming opinions. ticular field in pin- his examination guidelines vide for (Basis Testimony by Opinion R.Evid. 703 examined body areas of the to be pointing Thus, independent two rationales Experts). narrowing his examina- closely more helpful appli- in its support the rule and are It is not eliminating other areas. tion naturally flows two-part cation. A test examination dispositive Hopkins’ that Dr. first, is the declar- from this dual rationale: the one he have been identical to purpose with the ant’s motive consistent unable to utter performed Lucy if had been rule; second, is it reasonable for that his exam- The doctor testified a word. on the information in physician rely to lengthy more had ination would have been diagnosis or treatment. description of the to elicit a he been unable cause, although he stated the exam general in the record to We find no facts indicate basically same. Lucy’s making that motive these state- would have been the discussion of the patient seeking than as a in this case ments was other fact not lead to a funda- injury testified that cause of the did Hopkins treatment. Dr. not mean exam does purpose mentally of his examination was two-fold. different pertinent was not preserve any He was to treat and to the discussion diagnosis. enough There is noth- It is the informa- evidence that was available. potential physical problems statements ing in the content of the tion eliminated suggest responding to the from the doctor’s examination in order to 803(4). Discovering what reason other than the test of questions any doctor’s meet pertinent important injured equally It is is as promoting treatment. is not finding hap- diagnosis what as what note that the statements concern treatment *8 testified, in re- injured. Hopkins assaulted her. The Dr. also pened rather than who court, questions from the pertinent diagno- sponse specific former in most cases is to to 803(4) by advisory pro- a white notes on but a statement that he was shot 10. committee Narciso, 446 ordi- man would not. United States v. vide that statements as to fault would not narily (E.D.Mich.1977). example: F.Supp. qualify. And the “a 289 The notes use oper- by patient patient’s while he was struck an fact that a ating strained himself statement that may significant qualify be to treat- but not his statement a machine automobile would through light.” patient a red ment but the fact said that Advisory the car was driven Notes, may supra, not. See Stewart An- machine was defective Committee at 585. Co., (2d by example 530 v. Baltimore & O. R. 137 F.2d other patient concludes that a statement 1943). be that he was shot would admissible Cir.
85
have
tion made while the
sought
that most doctors would
such
declarant was under
upon Lucy’s
that he relied
history
by
and
the stress of excitement caused
upon
deciding
statements
in
a course of
803(2).
event or condition.” Fed.R.Evid.
treatment.11
Lucy at
Officer Marshall interviewed
7:15
m.;
forty-five
p.
somewhere between
min-
light
analysis
In
of this
we hold that
hour,
utes and one
fifteen minutes after the
not
to
it was
an abuse of discretion
admit
argues
Lucy
assault. The
defense
testimony.
the doctor’s
A recent Ninth Cir
longer
no
“under the stress of excitement
concerning closely analogous
cuit case
facts
caused
the event” when she talked to
Nick,
supports this result. United
v.
States
Marshall,
empha-
The defendant
Officer
B. Testimony Officer Marshall’s 1979); see Handbook of the McCormick’s (2d Law of Evidence 297 ed. Nor is The defendant also asserts that it was controlling Lucy’s it statement was prejudicial hearsay error to admit the testi- inquiry. an response made in mony pursuant of Officer Marshall Glenn, (D.C. 803(2). F.2d The rule allows admission hear- States say, competent, Cir.1972); McCurdy Corpora otherwise v. Greyhound is a “state- tion, relating startling (3d 1965).12 ment to a event or condi- Judge approached problem fairly freely, leaving 11. Weinstein as it to nurses and doctors probative to decide force. follows: depends analysis. Much on the doctor’s Berger, supra, (foot- Weinstein & at 803-130 may may The doctor not need to know omitted). find, necessary *9 prima rules, adoption mation is facie evidence that it was dence. Prior to the these pertinent. practice exceptions grouped together Courtroom has tended to two were often gestae” exception. let in medical records and statements referred to as the “res
86 323, Corporation, ness 421
Rather,
are factors
the trial
Machines
F.2d
these
which
weigh
determining
(8th
1970) (A
in
whether
326
court
great
court must
has
Cir.
trial
803(2)
testimony is
the offered
within the
ruling
admissibility
on the
of
latitude in
factors
in
Other
to consider
exception.
Systems,
evidence.); Burger
Inc. v.
Chef
declarant,
age
physical
the
(8th
clude the
Govro,
921,
1969)(The
930
Cir.
407 F.2d
declarant,
of
condition
the
the
and mental
the
in
of the trial court
admission
discretion
subject
of the event and the
characteristics
evidence,
when exercised within normal
of the statements.
In order to find
matter
limits,
appeal.);
disturbed on
should not be
803(2) applies, it must
that the
appear
that
v.
Company
General Insurance
America
condition at
time was such
declarant’s
the
Company,
F.2d
Hercules
385
Construction
spontaneous,
the statement was
excit
that
13,
1967).
(8th
24
Cir.
product
rather than
impulsive
ed or
standard,
Applying this
we cannot
reflection and deliberation.
United
See
say
court abused its discre
that the district
Knife,
472,
(8th
F.2d
v.
592
481 n.10
States
single question
happened”
tion.
“what
Moss,
1979);
F.2d
United States v.
544
Cir.
destroy the
has been held not to
excitement
1976),
denied,
954,
(8th
958
Cir.
cert.
429
this
qualify
exception
under
necessary to
1077,
822,
87
view that
the evidence was at most
v. Green where
Court re
our
California
cumulative and therefore constituted harm manded the case for a determination of
Moss,
v.
less error. See United States
su
of the opportunity
whether “the nature
960;
Miller,
Wright
at
3
pra, 544 F.2d
dispositive
cross-examine”
of the con
Procedure,
Fed. Practice and
Criminal 854
Green,
v.
frontation issue. California
su
(1969).
preceded
Officer Marshall was
on
168-70,
1940,
pra, 399
90
U.S. at
S.Ct.
Hopkins,
the stand
Dr.
Pam Lunderman
Green,
People
remand sub
v.
3
nom.
Cal.
Lucy.
testimony
officer’s
was sub
981,
998,
Cal.Rptr.
(1971).
479 P.2d
92
494
—
stantially
restatement
facts
Roberts,
—,
See also Ohio v.
U.S.
brought
into evidence
those three wit
2531,
(1980);
100
er.
It is difficult to conclude on this record
C. Confrontation Clause
that a
thorough
more
cross-examination
provided
protections
would not have
suggests
The defense also
that the admis
inherent
in the
confrontation
clause.
hearsay
sion of the two
statements violates
Nevertheless, assuming arguendo
confrontation
clause.
U.S.Const.
was unavailable in the sense suggested by
Amend. VI.13 This case differs from the
court,
Nick
we conclude that
the con
usual confrontation-hearsay
case in that
frontation clause was not violated because
the declarant was a witness at trial and was
statements,
hearsay
particu
the admitted
subject to cross-examination.
See Califor
larly
given
Hopkins,
those
to Dr.
had suffi
Green,
149, 161,
nia v.
399 U.S.
90 S.Ct.
reliability
cient indicia of
in order to afford
1930, 1936,
(1970).
er).
principle
recognized
This
was also
(1975).
13. The confrontation clause and the
14. This conclusion would
a modifica-
similar,
identical,
protect
holding concerning
rule
but not
interests.
tion in our alternative
Offi-
strictly construed,
testimony.
If
the confrontation clause
cer Marshall’s
The assumed error
prevent
virtually
hearsay.
the use of
all
would be elevated to a constitutional
level.
rejected.
same,
long
Any
This result has
been
—,
Ohio
Our conclusion is the
however.
—
Roberts,
beyond
U.S.
S.Ct.
error is harmless
a reasonable doubt.
evidence,
States,
L.Ed.2d 597
Some
admissible
See Brown v. United
411 U.S.
230-
rules,
hearsay
may
(1973);
under the
violate the con
D. Lesser
(1)
the
rape
commit
are:
jury
court
instructed the
The trial
(2) that
prosecutrix,
the
the
assaulted
rape and sim-
with intent to commit
assault
with the
the assault
defendant committed
subpara-
under section 113
ple assault
rape. The
specific intent to
offense
commit
113(a),
(e).
(e)
(a) and
18 U.S.C.
graphs
§
beating or
by striking,
wounding
assault
of
(1970).
requested
The defendant
to
what he claims
held
circuit
constitute
an instruction on
has been
denied
principal
offense of the
a lesser included
v.
law
United States
battery.
common
482;
defense asserts that the court
charge. The
Knife,
supra, 592 F.2d
United
the jury concerning
should have instructed
501,
(6th
504-05
Stewart,
F.2d
v.
568
States
striking, beating
of assault
charge
a
1978).
v.
See also United States
An
Cir.
113(d).
under
18
wounding
section
U.S.C. derson,
(7th
1970).
425 F.2d
Cir.
333
113(d) (1970).
§
Thus,
113(d)
charge
a
under section
show
require
prosecution
the
some
A defendant
is entitled to a lesser
if,
if,
physical
included offense instruction
but
of
contact. See LaFave &
form
(1)
following
the
conditions are met:
an Scott,
Law
Handbook
80
on Criminal
appropriate
requested;
must
instruction
be
above,
(1972).
physical
no
As noted
contact
(2)
the elements
lesser offense
the
are
required
touching is
in a
or offensive
part
identical
to
of the elements
charge of
with intent
to commit
assault
offense; (3)
greater
there is some evidence
Therefore,
113(d) is
rape.
section
not a
justify
that would
conviction of the lesser
included
it
lesser
offense because
has an
offense; (4)
proof
on the differentiating
which
element of
element
is not an
sufficiently
element or elements must be
in greater charge.
dispute
jury may consistently
that the
find
31(c)
Rule
states that
the instruction is
greater
the defendant
innocent of the
of
where
is
called for
the lesser offense
“nec
lesser;
guilty
(5)
fense but
a
greater
essarily” included in the
offense.
charge
may appropri
on the lesser offense
concept
principle
This
is
in the
expressed
ately
requested by
prosecution
be
either the
necessarily
one offense
is
included
Scharf,
or the defense.
v.
United States
if it is
to commit
impossible
another
(8th
1977);
502
Cir.
having
without
committed the
greater
also
(8th
Thompson,
States v.
492
362
F.2d
378
Virgin
Aquino,
v.
F.2d
lesser.
Islands
1974).
Cir.
Federal Rules
Criminal
(3d
Miller,
1967); Wright and
554
Cir.
may
Procedure state that a “defendant
be
guilty
necessarily
found
of an
supra,
offense
in
section 515 n.58. The above discus
* *
cluded in the
charged
possible
offense
it would be
sion demonstrates that
31(c).15
Fed.R.Crim.Pro.
to commit an assault with intent
commit
battery.
rape
committing
without
The second element
in the criteria first
States,
Durns v. United
549
outlined
is
Thompson court
959, 98
(8th Cir.),
denied,
cert.
S.Ct.
disagreement
source of
here. The defense
L.Ed.2d
argues
113(d)
that section
is a lesser includ-
ed offense of an assault with intent
event,
any
In
the evidence of as
case,
because,
commit
an
rape
in this
as-
rape
sault
intent
to commit
was so
battery
suggests
sault and
He
occurred.
strong it is our
that submission
view
the elements required
prove
both
required.
lesser included offense was
same,
crimes are the
for the
except
addi-
Klugman,
tional element of
specific
rape
intent
principal
which is needed
See United States
charge
under
Scharf,
here.
not agree.
supra,
We do
F.2d at 503.
Although
31(c)
phrased permissively,
15.
rule
offense instruction if the evidence warrants it.”
—
—,
Alabama,
“universally
granting
interpreted
it is
as
de-
Beck v.
U.S.
right
requested
fendant a
to a
lesser
L.Ed.2d
included
exaggeration
It is not an
Equal
Challenge
E.
Protection
to describe the
jurisdictional
defining
scheme
the role of
The district court offered to in
Indian criminal
regarding
federal
courts
on a claimed lesser included
struct
complex.
law as
Four statutes outline the
law, sexual
offense under South Dakota
framework.
115218 extends
Section
contact with a child under
fifteen.
S.D.
general
govern
criminal laws of the federal
*12
22-22-7,
(1979)
Laws
22-22-7.1
Codified
§§
country
exception
ment
to Indian
the
(child molestation).16
re
Defense counsel
power
this extension of federal
does
jected
contending
the offer
the district
reach,
alia,
not
inter
of
crimes
Indian
jurisdiction
court was without
to issue the
against
Indian where the Indian has been
instruction. The defendant asserts that
tribe,
law
punished under
local
of the
or
jurisdictional
scheme embodied in 18 U.S.C.
juris
by treaty stipulation
where
exclusive
equal
1152 and
1153 is a denial of
§
§
diction is reserved to the tribe.
Section
protection because a
would be
non—Indian
1153,19
Act,
Major
Crimes
covers the
entitled to such an instruction while an
in
exceptions
grants
section 1152 and
feder
Indian defendant
is not.17 The defendant
jurisdiction
certain listed
al
to
crimes com
claims that
the district court’s offer to use
against
Indian
another
Indi
by
mitted
one
remedy
the instruction does not
the consti
country.
an if
within Indian
committed
infirmity.
charged
tutional
324220 states
those
Section
provide:
provides:
16. The South Dakota
19. 18 U.S.C.
§
statutes
(cid:127)
contact with child
Sexual
under fifteen
Any
against
per-
Indian who commits
Felony
Any person,
or misdemeanor.
fifteen
property
son or
person any
of another Indian or other
older,
years
engages
age
knowingly
of
or
who
offenses,
following
namely,
person,
in sexual contact with another
other
murder, manslaughter, kidnaping, rape, car-
spouse
person
than his
such
is
when
other
female,
wife,
knowledge
any
nal
of
not his
age
years
guilty
under the
of fifteen
of a
age
who
not
has
attained the
of sixteen
felony.
If
Class
years
the actor is less than three
years,
rape,
assault with intent
to commit
person,
guilty
older than the other
he is
incest,
murder,
assault with intent to commit
of a
Class misdemeanor.
dangerous weapon,
assault with a
assault
(1979).
22-22-7
S.D. Codified Laws §
arson,
bodily injury,
resulting in serious
bur-
-
Sexual contact defined. As used in
22§
glary, robbery,
larceny
within the Indian
22-7,
term,
contact,”
any
“sexual
means
country,
subject
shall be
same laws
to the
touching,
amounting
rape,
penalties
persons committing
as all other
any
genitalia
breasts of a female or the
offenses,
any of the above
within the exclu-
person
gratify
with the intent to
or
arouse
jurisdiction
sive
of the United States.
party.
the sexual desire of either
section,
As used in this
the offenses of
S.D.
Laws 22-22-7.1
§
Codified
burglary
pun-
and incest shall be defined and
equal protection
17. The
clause of the Four-
ished in accordance with the laws of the
applicable
teenth Amendment
is made
to the
in
State
which such offense was committed
government
through
process
federal
the due
as are in force at the time of such offense.
Bolling
clause of the Fifth Amendment. See
burglary
In addition
the offenses
Sharpe, 347 U.S.
412
93
36
U.S.
S.Ct.
214,
(footnote omitted).
at 1998
93 S.Ct.
L.Ed.2d 844
also United
See
States Thus,
the Court found
while an indict-
Pino,
908,
914-15
simple
charging
ment
a
assault could not be
1979);
States,
Felicia v.
United
court,
brought
improper
in federal
it was
353,
(8th Cir.),
denied,
cert.
charge
refuse an instruction on the same
L.Ed.2d 79
where the facts warranted such an instruc-
original
tion and the
indictment was based
In
Supreme
Keeble the United States
upon
the crimes enumerated in sec-
one of
Court considered the issue of “whether an
States,
tion 1153. See Keeble
United
prosecuted
[Major
Indian
under the
Crimes]
supra, 412
at
93 S.Ct. at
U.S.
Act is
a jury
entitled to
instruction on a
(Stewart, J., dissenting).
lesser included offense where that
lesser
offense is not one of the
attempts
distinguish
crimes enumerated
The defense
Kee
States,
in the Act.” Keeble v.
su-
ble
by asserting
simple
United
assault
is
pra, 412
at
U.S.
but
delineates
Fur-
already set out
in detail
the
We have
ther,
provides
section 3242
that defendants
amply supports the verdict
evidence which
charged under section 1153 shall be tried in
Dillon,
of Mike
guilt.
testimony
of
The
persons
the same manner as are all other
within
Mizner and Mae
Bear of what
committing the same offense
federal
Steve
Small
assault,
(e)
age
eighteen
Simple
by
na statute set the
of consent at
fine of not more
imprisonment
law
as it is
$300
than
or
for not more than
while the federal
was the same
months,
today.
charge
three
or both.
held that
the
could
Court
upon
not be based
the state law where the
accompanying
supra.
24. See text
note
alleged
exact conduct
in the indictment was
by
unlawful
federal statute. Williams v.
suggest
made
25. We do not
that we have determined
States,
that section
is a lesser
included of-
22-22-7
rape.
L.Ed.
See also United States v.
fense of an assault with intent
to commit
Butler,
question.
We
not now decide the
The doc-
need
is manifest *16 battery.”
word ‘assault’ to include Eades,
States v. (4th 622 n.5 Chaussee, v. see United States 1980);
Cir. accord (7th 1976); Cir. America, Appellee, UNITED STATES Anderson, United States Under U.S.C. EAGLE, Appellant. Gaylord Alfred TWO 113(a) there is uncontested evi- where with intent to battery, dence of a an assault No. 80-1365. battery commit is in effect a with the rape Appeals, Court rape. In such a specific intent to commit Eighth Circuit. case, simple battery the crime of is a neces- 12, 1980. Sept. Submitted included lesser offense. sarily Decided Oct. 1980. by beating Because assault is a lesser with intent included offense of assault be entitled rape,
commit defendant would
to an instruction if or treatment. Notes motive to tell medical patient’s repeat Eighth opinion physician statement could 8. This is the first Circuit 803(4) pre-1975 symptoms history regarding past on its consider the effect of medical
Notes
notes It is not patient that his was struck a train and case, we do not hold in this that the fact that what caused him to fall under the train since prima the doctor took the information is facie may dizziness before the accident diagnosis. bear on Rather, pertinent. evidence that it was we pa- A doctor consulted after the conclude that a close examination of the facts tient was in an involved automobile accident required. and circumstances in each case is may need to know that the accident was precipitated patient when the fainted while driving. may Since doctors be assumed 803(1) (2) 12. Rules codifications of the are unnecessary to want to waste their time with exceptions developed prior in the federal courts history, the the infor- fact that a doctor took Evi- to the enactment of the Federal Rules of