United States v. Eneas Lavern Nick

604 F.2d 1199 4 Fed. R. Evid. Serv. 1463 UNITED STATES of America, Plaintiff-Appellee, v. Eneas Lavern NICK, Defendant-Appellant. No. 78-2382. United States Court of Appeals, Ninth Circuit. Aug. 22, 1979. Rehearing Denied Oct. 18, 1979. Judith A. Corbin, Asst. U. S. Atty. (argued), Spokane, Wash., for plaintiff-appellee. Claude F. Bailey (argued), Quackenbush, Dean, Bailey & Henderson, Spokane, Wash., for defendant-appellant. Appeal from the United States District Court for the Eastern District of Washington. Before CARTER and HUFSTEDLER, Circuit Judges, and MURRAY, * District Judge. PER CURIAM: 1 Nick appeals from his conviction for sexually assaulting a three-year-old boy. Nick and the child are Indians, and the crime occurred on an Indian Reservation. On appeal, Nick contends that the district court erred (1) in denying his motion to suppress inculpatory statements that he claims were taken in violation of his Miranda rights, and (2) in admitting, over hearsay and confrontation clause objections, damaging statements of the victim reported in the testimony of the child's mother and his physician. 2 The assault occurred when Nick was babysitting the child. The child's mother…

Nick appeals from his conviction for sexually assaulting a three-year-old boy. Nick and the child are Indians, and the crime occurred on an Indian Reservation. On appeal, Nick contends that the district court erred (1) in denying his motion to suppress inculpatory statements that he claims were taken in violation of his Miranda rights, and *1201 (2) in admitting, over hearsay and confrontation clause objections, damaging statements of the victim reported in the testimony of the child’s mother and his physician.

The assault occurred when Nick was babysitting the child. The child’s mother had known Nick for many years, and the child was well acquainted with Nick. When the child’s mother picked up the youngster, the child was asleep with Nick in a locked bedroom. The child’s pants were unzipped. After she brought the child home, she observed “white stuff” in the youngster’s clothing. The mother asked the child whether Nick had done anything to him, and the child responded, “Yeah, Eneas [Nick] stuck his tutu in my butt.” The child also stated that Nick had hurt him and made him cry. The following day, a physician examined the child, and found physical evidence consistent with…

concurring specially:

I would reverse this case for Miranda error if I were free to do so, because I adhere to the views I expressed in dissent in United States v. Rodriguez-Gastelum, supra, 569 F.2d 482 . I concur in an affirmance of the conviction on the Miranda point under the compulsion of the majority opinion in United States v. Rodriguez-Gastelum, supra.

concurring specially:

I cannot agree that Nick, the appellant, effectively requested counsel. I think the facts show that he did not.

However, assuming that he did request counsel, I am in agreement that Nick knowingly and intentionally waived his right to counsel.

I concur in the affirmance of the conviction.