Submitted October 22, 2015.
Appeal from United States District Court for the District of South Dakota - Aberdeen.
For United States of America, Plaintiff - Appellee: Kevin Koliner, Assistant U.S. Attorney, Thomas J. Wright, Assistant U.S. Attorney, U.S. ATTORNEY'S OFFICE, Sioux Falls, SD; Timothy Marshall Maher, Assistant U.S. Attorney, Jay P. Miller, Assistant U.S. Attorney, U.S. ATTORNEY'S OFFICE, District of South Dakota, Pierre, SD.
Mario M. Contreras, Defendant - Appellant, Pro se, Oxford, W.
For Mario M. Contreras, Defendant - Appellant: Sam E. Khoroosi, Minneapolis, MN.
Before RILEY, Chief Judge, SMITH and SHEPHERD, Circuit Judges.
SMITH, Circuit Judge.
A jury convicted Mario Contreras of second degree murder and assault resulting in serious bodily injury. The district court sentenced Contreras to the mandatory minimum sentence of 360 months' imprisonment. On appeal, Contreras argues that (1) the district court erred in denying his motion for judgment of acquittal based on sufficiency of the evidence; (2) the district court erred in denying his motion for a new trial based on purportedly prejudicial pretrial publicity; (3) the district court made erroneous evidentiary rulings; (4) the district court clearly erred in determining that Contreras was competent to be sentenced; and (5) Contreras's sentence violates the Eighth Amendment. We affirm.
" We present the facts in a light most favorable to the verdicts, drawing all reasonable inferences from the evidence that support the jury's verdicts." United States v. Ramon-Rodriguez, 492 F.3d 930, 934 (8th Cir. 2007) (citation omitted).
A jury found Contreras guilty of killing his daughter A.C. She was born on December 31, 2009, and was two years old at the time of her death in January 2012. A.C. was one of Contreras's seven children.
Contreras had little involvement with A.C. for the first 18 months of her life. But in August 2011, Contreras watched A.C. one evening at the request of her mother, Shannon Sine. During the evening, Contreras slapped A.C. very hard on the bare buttocks. After Contreras returned A.C. to Sine, Sine noticed a large handprint on A.C.'s buttocks. Sine immediately called Contreras, who apologized for spanking A.C. hard and explained that he had disciplined A.C. because she would not throw away her diaper. With her mother's assistance, Sine photographed the handprint on A.C.'s buttocks for documentation.
In December 2011, Sine and her husband met Contreras in a grocery store parking lot to retrieve A.C. after a visit with Contreras. Contreras had been watching A.C. for a couple of days. During the exchange, A.C. pointed at Sine's new husband and said, " That's my Dada." After A.C.'s statement, Contreras stopped talking and left shortly thereafter.
On December 28, 2011, about two weeks before her death, A.C. underwent a physical examination prior to enrolling in school. The examining physician testified that A.C. was a healthy child without any issues. The trial record includes the doctor's report of the physical.
On Wednesday, January 4, 2012, Sine asked Contreras to watch A.C. for a couple of days. Contreras's finances, particularly his child-support duties for seven children, caused him great stress. In addition, his employer had put him on a " short leash." Contreras had been routinely late for work during much of 2011 and received several warnings from his supervisor. He had to commute about 45 minutes to an hour to his workplace.
After watching A.C. for two days, Contreras, on Friday, January 6, 2012, called Sine requesting to keep A.C. through the weekend. Sine agreed. On Sunday night, January 8, 2012, Contreras again called Sine and asked her if he could extend A.C.'s stay until the next morning so that he could take her to school. Sine agreed. Sine had talked to A.C. on the phone during each of those five nights that A.C. was in Contreras's care. Sine testified that A.C. sounded normal during those conversations. Contreras would later tell the FBI that A.C. was " fine" on Sunday night. Unfortunately, Sine spoke to A.C. that Sunday night for the last time.
Sine also spoke with Contreras on Sunday night " about the child-support obligation." According to Sine, he " wanted to file for joint custody and stop the child support." He explained that he was hoping not to pay anymore child support; when he asked Sine to terminate the child support, she told him " no." Sine later recalled that she had, in fact, texted Contreras prior to the spanking incident, asking him whether he would be able to have A.C. half of the time " with an agree[ment] that there is no child support."
On Monday, January 9, 2012, Contreras had to be at work at 8 a.m. He had four of his children (all under age 11) in his care that morning with no other adult helping him. A.C. was known to be a particularly fussy child in the morning. But instead of going to work on Monday morning, Contreras went to his uncle's residence near Waubay, South Dakota. Contreras, carrying A.C., approached his uncle, Dennis Gill. Upon seeing A.C. unconscious, Gill knew that Contreras needed to get A.C. to the hospital. Gill did not call 911 and did not go with Contreras to the hospital. He testified that he did not go with Contreras to the hospital because his back was hurting and " [b]ecause of the panic, and [he] thought she was gone at the time."
Contreras rushed A.C. to a hospital in Sisseton, South Dakota, and the police received a call from the hospital of an unresponsive juvenile at 8:39 a.m. Contreras called Sine and informed her that A.C. was in the intensive care unit. One relative at the hospital thought that it was unusual that Contreras appeared emotionless at the hospital, giving doctors only one-word answers to their inquiries. That relative testified that the doctors were " having to probe very much to get information from him about the sequence of what had happened just within the last few hours or hour."
A.C. remained unresponsive at the Sisseton hospital. After air-ambulance transport to Fargo, North Dakota, A.C. was examined by Dr. Arne Graff, " a subspecialist in child abuse pediatrics." Dr. Graff was told that Contreras attributed the child's condition to having fallen off a chair. Dr. Graff told Contreras that the child's injuries were totally inconsistent with a fall. Contreras did not respond. A.C. never regained consciousness, and life support was terminated on January 11, 2012.
St. Paul Coroner Dr. Victor Froloff conducted the autopsy on A.C. and contacted the FBI with his concerns that the child had been beaten to death. He documented 18 subgaleal hemorrhages on multiple planes of A.C.'s head. Had A.C. merely fallen, her injury would have shown a discrete area of impact. When asked at trial whether he had " an opinion within a reasonable degree of medical certainty [as to] what looked like the instrumentality or what caused [the] marks" on A.C., Dr. Froloff opined that he was " highly suspicious" that the hemorrhages were induced " by a fist, but could be . . . by just punching." Dr. Froloff classified A.C.'s injuries as " acute" and estimated that the injuries occurred within approximately " 72 hours" of A.C. dying at the hospital. He opined that " the cause of death is traumatic brain injury due to physical assault." Dr. Froloff completed the death certificate, labeling the cause of death as homicide from physical assault.
FBI Agent Rob Mertz interviewed Contreras; during the interview, Contreras stated a number of times that A.C. was " fine" on Sunday night, January 8, 2012. He claimed that A.C. was sitting on a chair in the kitchen; he then went into another room to change a diaper on another child and heard a " thump." According to Contreras, " [h]e turned around and saw [A.C.] lying on the kitchen floor. She was groaning. He said her eyes were already rolling back into her head." He claimed that " her toes were starting to point in and stiffen up."
Contreras was indicted by a federal grand jury on charges of second-degree murder, in violation of 18 U.S.C. § § 1111, 1153, and 3559(f)(1) (" Count 1" ); manslaughter, in violation of 18 U.S.C. § § 1112 and 1153 (" Count 2" ); assault resulting in serious bodily injury, in violation of 18 U.S.C. § § 113(a)(6), 1153, and 3559(f)(3) (" Count 3" ); and child abuse, in violation of 18 U.S.C. § 1153 and South Dakota Codified Laws § 26-10-1 (" Count 4" ). Count 4 tracked the two-year time period that A.C. was alive. Over the government's objection, the district court severed Count 4 from the rest of the indictment. After severing Count 4, the government moved under Federal Rule of Evidence Rule 404(b) to admit the August 2011 " swat" or handprint that Contreras had inflicted on A.C.'s buttocks in August 2011. The district court eventually allowed the government to present testimony regarding the incident.
At trial, Dr. Froloff testified regarding his findings during the autopsy and his listed cause of death as homicide. Likewise, Dr. Graff testified to his physical examination of A.C. and all of the tests, scans, and records that he had reviewed. Dr. Graff testified to the 18 different contusions around A.C.'s head and the multiple sites of trauma. According to Dr. Graff, the injuries to the top of A.C.'s head were " inconsistent with the normal fall mechanics of a child." He opined " within a reasonable degree of medical certainty" that " the injuries [that he] observed on [A.C.] in January of 2012 [were] consistent with a physical assault." He also held the opinion that A.C.'s injuries " are not consistent with a simple fall off a chair." Dr. Graff agreed with the death certificate that the manner of A.C.'s death " seems to be consistent with" a " homicide."
Clinical pathologist Dr. Kenneth Snell testified to his review of all the records, scans, photos, autopsy report, and death certificate. Dr. Snell explained that one fall equals one contusion on one side of the head and that A.C. had suffered injuries on both sides of her head and to the top of her head and forehead. Dr. Snell testified that it was not possible to get 18 hemorrhages on one's head from a single fall and agreed that the injuries were consistent with homicide.
Contreras's expert, Dr. Brad Randall, confirmed that he " for the most part . . . agree[d] with the factual determination of Dr. Froloff." He agreed that he " couldn't really dispute his finding of 18 different subgaleal hemorrhages, because he was there in person, and that's a better tell than just looking at a photograph." He also agreed that " if the child would have fallen from a chair of two feet in height, . . . that would not cause 18 subgaleal hemorrhages." He agreed with Dr. Snell's testimony that " when you fall, you are going to have one contusion." He further agreed that " three or ...