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United States v. Walking Eagle

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

August 13, 2018

UNITED STATES OF AMERICA, Plaintiff,
v.
JALEN WALKING EAGLE, Defendant.

          ORDER

          JEFFREY L. VIKEN, CHIEF JUDGE.

         A jury convicted defendant Jalen Walking Eagle of assault resulting in serious bodily injury and first degree burglary. (Docket 63). The jury acquitted defendant of assault with a dangerous weapon. Id. Defendant filed a motion for a new trial pursuant to Rule 33 of the Federal Rules of Criminal Procedure. (Docket 95). He bases his motion on the discovery of new evidence. Id.

         BACKGROUND

         A grand jury returned an indictment alleging defendant committed three offenses: (1) assault with a dangerous weapon, (2) assault resulting in serious bodily injury and (3) first degree burglary. (Docket 1 at pp. 1-2). Count one alleged defendant “knowingly assault[ed] Zach Poor Bear with a dangerous weapon, namely, shod feet, with the intent to do bodily harm[.]” Id. at p. 1. Count two claimed defendant “knowingly assault[ed] Zach Poor Bear, said assault result[ed] in serious bodily injury[.]” Id. And Count three asserted defendant “unlawfully enter[ed] and remain[ed] in an occupied structure . . . Zach Poor Bear's residence, with the intent to commit an assault and larceny . . . during the nighttime[.]” Id. at p. 2. All events allegedly occurred on or about February 12, 2017. Id. On August 22, 2017, a jury trial commenced before this court. (Docket 59). The court sets forth only the trial evidence necessary for resolving defendant's new trial motion.

         I. Trial

         The government called Michelle Elbow Shield as a witness. Elbow Shield testified that during the early morning of February 12, 2017, she was in bed with Poor Bear at his residence when defendant entered the room with Walter Mousseaux, Jr., after Elbow Shield and Poor Bear had sex. (Docket 91 at pp. 123-25). Defendant and Elbow Shield have two children and an on-and-off romantic relationship. Id. at pp. 118-20, 154. Elbow Shield testified that after defendant entered the room he neither kicked nor stomped on Poor Bear. Id. at pp. 130-35. She testified Mousseaux kicked Poor Bear. Id. at pp. 131-33. Elbow Shield stated she was drinking that night and felt drunk. Id. at pp. 123-25. Her trial testimony was unclear on whether defendant assaulted Poor Bear at all.[1]

         Mousseaux testified at trial. Mousseaux testified he drank a portion of a “jug” of vodka on the night of February 11, 2017. Id. at pp. 161-62. He testified he and defendant arrived at Poor Bear's residence between 2 and 3 a.m. on February 12, 2017, and walked in on Elbow Shield and Poor Bear having sex. Id. at p. 169. According to Mousseaux's testimony, once Mousseaux and defendant entered the room, defendant punched Poor Bear in the face, Poor Bear fell to the ground and defendant kicked and stomped on Poor Bear.[2] Id. at pp. 169-71. Then defendant and Mousseaux took a television, DVD player and space heaters from Poor Bear's residence. Id. at p. 171.[3]

         Although defendant did not testify, a statement he made to law enforcement was substantive trial evidence and admitted in the form of an audio recording played for the jury. Exhibit 12; see Dockets 60 & 91 at p. 191. In his interview with law enforcement, defendant stated after he entered the room where Poor Bear and Elbow Shield were in bed, Poor Bear stood and attempted to fight him, so defendant punched Poor Bear. Exhibit 12; (Docket 102 at pp. 5-7). Defendant stated Poor Bear went to the ground after being punched and defendant hit him further with a closed fist. Exhibit 12; (Docket 102 at pp. 5-7). According to defendant's statement, Mousseaux then began kicking Poor Bear. Exhibit 12; (Docket 102 at pp. 5-7).

         At the government's request, the court's jury instructions included aiding and abetting in setting out the elements of the charges.[4] (Dockets 51 & 57 at pp. 6-15). The first charge, assault with a dangerous weapon, consisted of four elements:

1. On or about February 12, 2017, Mr. Walking Eagle knowingly assaulted Zach Poor Bear or aided and abetted in that offense;
2. Mr. Walking Eagle used a dangerous weapon, shod feet, to commit the assault;
3. Mr. Walking Eagle intended to inflict bodily harm to Mr. Poor Bear; and
4. Mr. Walking Eagle is an Indian person and the offense took place in Indian country at Pine Ridge, South Dakota.

Id. at pp. 6-8. For the second charge, assault resulting in serious bodily injury, there were three elements:

1. On or about February 12, 2017, Mr. Walking Eagle knowingly assaulted Zach Poor Bear or aided and abetted in that offense;
2. Two, the assault resulted in serious bodily injury to Mr. Poor Bear; and
3. Three, Mr. Walking Eagle is an Indian person and the offense took place in Indian country at Pine ...

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