United States v. Standing Soldier

538 F.2d 196 (8th Cir. 1976)

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Nature of the Case

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Facts

Marvin Tootoo and Burgess Red Cloud met D at the Pine Ridge, post office. The three men began drinking wine. They then took a ride with three other persons drinking beer along the way. When the weather turned bad, the six persons returned to Pine Ridge, where Standing D, Tootoo, and Red Cloud were let off at Red Cloud's trailer around noon. D appeared at the home of Mr. and Mrs. David Howell and told Mrs. Howell to telephone the police because he had just killed a man. Mrs. Howell complied and also telephoned her husband. Mr. Howell returned to his home and Standing Soldier informed him that he had killed a man. BIA police arrived and D told them that he had killed two men. They drove to Red Cloud's trailer. The officers went into the trailer and observed Tootoo lying unconscious on a cot. Tootoo had suffered no injuries but had apparently passed out as a result of his intoxication. Red Cloud was found lying on the floor in a pool of blood with a hammer protruding from his head. FBI agents proceeded to interview D, who was given his Miranda rights, and D gave a statement claiming he was defending himself. Later in the evening of March 26th, D sent a note to BIA Police Captain Gerald Hill, asking for a further interview. Hill interviewed D after first advising him of his Miranda rights. Hill obtained a statement in narrative form, which Hill transcribed, and D then read and signed. A typed version of the statement was read and signed by D on March 27th, after he was again advised of his rights. On April 2, 1975, D related a substantially different version of the events of March 26th, in which he stated that after he had first struck Red Cloud and had begun to walk away he saw Red Cloud move on the floor of the trailer and went over to Red Cloud and hit him two more times until he thought he was dead. The note was lost by tribal or federal authorities, but Captain Hill produced a typewritten copy at trial from which he testified. The District Court permitted testimony concerning the note after Captain Hill testified that he had compared the signature on the note with that of D on the signed statement that he had made and found them to be the same. D objected and was convicted and appealed. D contends that this testimony was prejudicial error in that the note was not properly authenticated or identified and that use of a copy of the note, instead of the note itself, violated the best evidence rule.