Submitted: May 15, 2015.
Appeal from United States District Court for the District of South Dakota - Rapid City.
For United States of America, Plaintiff - Appellee: Eric D. Kelderman, Assistant U.S. Attorney, Ted McBride, U.S. Attorney's Office, Rapid City, SD; Kevin Koliner, Assistant U.S. Attorney, U.S. Attorney's Office, Sioux Falls, SD.
For William Clifford, Defendant - Appellant: William Clifford, Federal Correctional Institution, Beaumont, TX; John R. Murphy, Rapid City, SD.
Before RILEY, Chief Judge, BRIGHT and MURPHY, Circuit Judges.
MURPHY, Circuit Judge.
William Clifford was charged with assault with a dangerous weapon and assault resulting in serious bodily injury in violation of 18 U.S.C. § § 113(a)(3), (6), 1153, and 2. At trial the district court admitted an out of court statement by the victim's three year old son that " Will and King hurt mama." Clifford objected to this evidence based on the Confrontation Clause of the Sixth Amendment. A jury convicted Clifford of simple assault and assault resulting in serious bodily injury, and he appeals. We affirm.
During the evening of October 16, 2012, a group of people including William Clifford, King Martinez, Kealey Twiss, Twiss's
boyfriend Sean Davis, Marvin " Joe" Brave, Craig Chase, and Gary Rowland, Jr. were drinking alcohol together in the basement of a home on the Pine Ridge Indian Reservation. J.W.W., Twiss's three year old son, was also present. Around 7:00 p.m., Twiss asked Davis to get a transmitter so they could listen to some music. When Davis left to get the transmitter, Twiss and J.W.W. were sitting on a bed, Rowland was sleeping on a couch, Brave, Chase, and Clifford were sitting on folding chairs, and Martinez was standing off to the side by the radio.
Davis was gone for approximately five minutes. On his return he saw Clifford, Martinez, Brave, and Chase walking up the stairs from the basement. Davis heard J.W.W. crying as he entered the basement which was divided into four spaces by hanging sheets. J.W.W. had a sheet " wrapped around him like a blanket[,] hiding" and ran to Davis in tears and held onto his leg. When Davis asked him, " What's wrong?", J.W.W. said, " Mama's hurt." Davis asked, " Where?", and J.W.W. pulled back one of the sheets to show Twiss lying " face first on the ground . . . unconscious in a pool of blood." The floor of the basement was uncarpeted concrete. Davis asked, " What happened?" and J.W.W. replied, " Will and King hurt mama." At the time he made this statement, J.W.W. was " hysterically crying," " shaking," and " latched onto [Davis's] leg; he didn't want to let go. He was scared."
Twiss was still unconscious, and Davis carried her out of the basement and to her home. As Twiss regained consciousness, she began crying and said that her head hurt. Davis and her relatives took her to the emergency room at the Pine Ridge Hospital, but she insisted on leaving because " other patients in the waiting room were staring at her laughing because she was basically all bloody and looked pretty rough." Her face was bruised, scraped, and badly swollen, with " purple raccoon eyes," one of which was bleeding. They took her home but when she " scream[ed]" from head pain after resting for about 30 minutes, they " rushed her back to the [Pine Ridge] hospital." Twiss was later transported by airplane to Rapid City Regional Hospital where she was diagnosed with a skull fracture and a subdural hematoma, a type of traumatic brain injury.
At trial Twiss testified about what had happened to her in the basement. Martinez had approached her and pulled on her shirt, apparently trying to expose her breasts. When she asked him to stop, he hit her. Twiss tried to light a cigarette but dropped her lighter. When she bent down to pick it up, a small pocket knife from her father's car fell from her shirt onto the floor. Clifford picked up the knife and asked her, " what [she] was going to do with it." Twiss thought he was joking, so she giggled and said, " Whatever." Clifford then struck her face, and she ended up on the floor covering her head. ...