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United States v. Dowty

United States District Court, D. South Dakota, Western Division

July 13, 2018

UNITED STATES OF AMERICA, Plaintiff,
v.
JAMES ROBERT DOWTY, Defendant.

          ORDER

          JEFFREY L. VIKEN, CHIEF JUDGE.

         INTRODUCTION

         A jury convicted defendant James Robert Dowty of second degree murder and discharge of a firearm during a crime of violence. (Docket 72). Defendant filed post-trial motions. (Dockets 101 & 103). One motion 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). (Docket 101). The other motion requests a new trial pursuant to Rule 33(a) on additional grounds. (Docket 103).

         TRIAL EVIDENCE

         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 trial transcripts, (Dockets 87-91), [1] as well as its recollection of the evidence presented at trial.

         During the early morning hours of July 20, 2016, 13-year-old T.C. was shot and killed while walking along a street in Pine Ridge, South Dakota. She was walking with three friends: R.O., age 15; Donovan Youngman, age 19; and A.R.C., age 17.[2]

         R.O. testified at trial. She stated shortly after midnight she drank alcohol with T.C., A.R.C. and Youngman. (Docket 88 at pp. 6-11). T.C. and R.O. smoked marijuana. Id. Mucinex and Robitussin were in R.O.'s possession, and she consumed some of the Robitussin. Id. at pp. 17, 43. R.O. testified the four of them left the last location at which they drank and began walking along a street in Pine Ridge. Id. at pp. 15-19. On the general lighting of the area, R.O. testified, “[i]t wasn't pitch black. You could see because of the street lights.” Id. at pp. 18-19. As the group walked, R.O. observed someone walking ahead of them in their direction. Id. at pp. 19-21. The group made a turn by cutting a corner, and the person R.O. noticed turned that direction as well and continued ahead of the group. Id. R.O. noticed the person wore red shoes. Id. at p. 41.

         R.O. testified the person she noticed was James Dowty. Id. at pp. 20-23. She explained she knew it was defendant because they are related and she had seen him around town. Id. She testified she “saw his face.” Id. at p. 21. T.C. asked R.O. whether the person was defendant's brother, “Joe Joe, ” someone they drank with on a prior occasion, but R.O. told her the person was defendant and not Joe Joe. Id. at pp. 21-23. R.O. testified she knew the difference between defendant and Joe Joe, specifying Joe Joe is smaller than defendant. Id. at p. 40. She stated at trial she was “certain” it was defendant and not Joe Joe. Id. at p. 67. R.O. did not provide a clear in-court identification of defendant. Id. at pp. 24-25. But she did testify that a photograph of defendant admitted into evidence was him, the person she witnessed shoot T.C. Id. at pp. 28-31.

         According to R.O., Youngman and A.R.C. skipped rocks in defendant's direction without hitting him. Id. at pp. 22-23, 30. R.O. testified defendant turned around once, facing the group, then put his back to them before turning around again, holding out a gun and firing a shot at them that hit T.C. Id. at pp. 28-31. R.O. stated she was “certain” defendant is the person who shot T.C. and that she recognized him before he pulled the trigger. Id. at pp. 40-41. R.O. testified defendant continued walking away after he fired the gun. Id. at p. 37. Defense counsel cross-examined R.O. after the government's direct examination and after the redirect examination. Id. at pp. 41-61, 68-69.

         Youngman also testified at trial, and his recollection mirrored R.O.'s. Before the gunshot, he noticed the shooter's “[r]ed and white” shoes. Id. at p. 77. Youngman testified A.R.C. threw a “regular”-sized rock in the shooter's direction without hitting him. Id. at pp. 77-78. Before the shooter walked ahead of the group, when they initially crossed paths with him, Youngman recognized it was defendant. Id. at pp. 78-79. Youngman stated he had seen defendant before in Pine Ridge. Id. at p. 79. According to Youngman's testimony, defendant turned around twice toward the group and on the second time he fired a gun hitting T.C. Id. at pp. 80-83. Youngman testified the street lights were on when he saw defendant. Id. at p. 106. Defendant then continued walking away from the group. Id. at pp. 84-86. Youngman identified defendant in the courtroom as the person he saw shoot T.C. Id. at pp. 89-90. As with R.O., defense counsel cross-examined Youngman after the government's direct and redirect examinations. Id. at pp. 92-101, 109-110.

         A.R.C. provided testimony at trial in line with R.O. and Youngman. He observed the shooter's “red shoes[.]” Id. at p. 115. Prior to any shooting, as the group initially passed by the shooter, A.R.C. recognized the person as defendant. Id. at p. 116. A.R.C. admitted he threw some rocks near defendant and they “[p]ossibly” hit him. Id. at p. 117. When defendant was in front of the group, A.R.C. observed defendant turn around twice, firing a gunshot the second time that hit T.C. Id. at pp. 117-19. A.R.C. identified defendant in court as the person he witnessed shoot T.C. Id. at p. 141. Defense counsel cross-examined A.R.C. Id. at pp. 126-134.

         Federal agents testified about their investigation. Federal Bureau of Investigation Special Agent Matthew Thatcher testified that during his investigation he examined defendant's bedroom and discovered red shoes. Id. at p. 217. Special Agent Thatcher seized the shoes and they were admitted into evidence at trial. (Docket 89 at pp. 141-43); (Exhibit 65). Bureau of Indian Affairs Special Agent Theodore Thayer testified about measurements taken of the area where T.C. was shot. (Docket 89 at pp. 108-110). Based on those measurements, there was a distance of 226 feet and six inches between a shell casing law enforcement discovered on the street and the estimated location where T.C. was hit. Id.; (Exhibit 7).[3]

         The forensic pathologist who conducted T.C.'s autopsy, Donald Habbe, M.D., testified. He observed a gunshot wound to T.C.'s abdomen. (Docket 89 at p. 197). Dr. Habbe testified T.C.'s significant injury was the gunshot and the damage it did to her aorta and spinal column caused her death. Id. at pp. 197, 202-04. According to Dr. Habbe, T.C.'s injury was consistent with being shot from 50 to 70 yards. Id. at p. 208.

         The defense called Paul Michel, O.D., who testified about the eye as a sensory organ and factors influencing eyewitness identification. (Docket 90 at p. 47). Factoring in lighting, distance and movement in a hypothetical situation similar to the setting where T.C. was shot, Dr. Michel testified “identification to the exclusion of all other persons . . . couldn't happen.” Id. at pp. 62-63.

         In the government's rebuttal case, Jesse Brewer, an Officer with the Oglala Sioux Tribe Department of Public Safety, was called to the stand. During Officer Brewer's testimony, the court admitted into evidence footage from his body camera of the street area when he reported to the scene where T.C. was shot. Id. at pp. 79-82; (Exhibit 88). He testified the recording was not enhanced and accurately showed the street as he saw it that night. (Docket 90 at pp. 82-84).

         ANALYSIS

         I. Rule 29(c) motion

         Defendant moved for a judgment of an acquittal at the conclusion of the government's case-in-chief and again after the government's rebuttal. (Docket 90 at pp. 2-3, 93). The court denied both motions. Id. Now defendant renews his Rule 29 motion. (Dockets 101 & 102 at pp. 7-8). He specifically argues the evidence was insufficient to ...


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