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United States v. Magnan

United States Court of Appeals, Tenth Circuit

July 20, 2017

UNITED STATES OF AMERICA, Plaintiff - Appellee,
DAVID BRIAN MAGNAN, Defendant-Appellant.


          William P. Widell, Jr., Assistant Federal Public Defender (Julia L. O'Connell, Federal Public Defender, and Chance Cammack, Assistant Federal Public Defender, with him on the brief), Eastern District of Oklahoma, Muskogee, Oklahoma, for Defendant-Appellant.

          Richard A. Friedman, Appellate Section, Criminal Division, United States Department of Justice, Washington, D.C. (Leslie R. Caldwell and Sung-Hee Suh, Deputy Assistant Attorney Generals, United States Department of Justice, Washington, D.C., and Mark F. Green, United States Attorney, and Linda Epperley, Assistant United States Attorney, Eastern District of Oklahoma, Muskogee, Oklahoma, with him on the brief), for Plaintiff-Appellee.

          Before BRISCOE, McKAY, and BALDOCK, Circuit Judges.

          BALDOCK, Circuit Judge.

          The district court sentenced Defendant David Magnan, a Native American, to life imprisonment times three after a jury convicted him of murdering Lucilla McGirt and two others in Indian Country in violation of 18 U.S.C. § 1153. Defendant shot McGirt twice and left her to die, paralyzed from the chest down, as part of an execution-style slaying during which he shot four individuals. McGirt died, but not before she identified Defendant as her assailant. On three separate occasions ranging from approximately two to five hours after the shooting, first a police officer, then an emergency medic, and finally McGirt's sister, heard McGirt identify Defendant as the man who shot her. At trial, these three individuals testified to McGirt's respective statements over Defendant's hearsay objections. Defendant now appeals his judgment of conviction. He asserts the district court abused its discretion in ruling McGirt's statements constituted excited utterances admissible under Rule 803(2) of the Federal Rules of Evidence. Our jurisdiction arises under 28 U.S.C. § 1291. We affirm.[1]


         In the early morning hours of March 2, 2004, after a day of drinking, Defendant Magnan, Aaron Wolf, and Aaron's uncle, Redmond Wolf, Jr., drove to the home of Jim Howard in rural Indian Country near Seminole, Oklahoma. Aaron's .40 caliber semi-automatic handgun, loaded with hollow point bullets, was in the front center console of Defendant's vehicle. Defendant, a friend of Aaron and former house guest of Howard now persona non grata, was driving. Shortly after midnight, Aaron had phoned Howard's residence and, though he later denied it, threatened to kill Howard over an ongoing family dispute regarding Howard's ownership of the home. Howard had been married to Aaron's aunt, Margie Wolf, and inherited the property when she died. Apparently this did not sit well with some members of the Wolf family, including Aaron.[2]

         Howard, Eric Coley, Lucilla McGirt, Karen Wolf, and Karen's daughter, Amy Harrison, were inside the residence as Defendant's vehicle approached. Karen was Margie and Redmond's sister and Aaron's aunt. Coley and McGirt, both friends of Howard, were unrelated to the Wolfs. Howard and his guests had been celebrating Coley's birthday and drinking, at least since early evening. Coley and Harrison heard the vehicle and went outside to meet it. Harrison greeted Redmond, her uncle, and Aaron, her cousin. Meanwhile, Coley informed Defendant that he and his friends were not welcome and should leave. The two men engaged in a scuffle. Coley wrestled Defendant to the ground. Defendant pulled a gun and shot Coley in the abdomen. Coley testified: "As [Defendant] was getting up, I seen him pull something out of his side and he shot me." Rec. vol. II, at 126.

         Coley "remember[s] looking down and seeing smoke coming out of my shirt." Id. Coley started to run. Despite a bad leg, Defendant briefly gave chase. Coley ran into the nearby woods to hide, but not before banging on the windows of the house to warn the others. Seconds later, Coley heard "around seven booms" or "shots" come from inside the house. Id. at 130. Harrison initially ran into the woods but then, in a panic, returned and sought cover around the house. Harrison heard "about four" shots come from inside. Id. at 182-83. Aaron could not recall how many shots he heard but remarked: "I know there was a lot." Id. at 412.

         After greeting Harrison, Redmond was returning to Defendant's vehicle when he heard a shot: "I seen David kind of leaning over . . . and I heard Eric Coley grunting." Id. at 250. As Coley fled, Redmond witnessed Defendant enter Howard's residence. Redmond heard what "[s]ounded like five" gunshots. Id. at 252-53. Redmond then entered the house: "As I entered the house, I seen David Magnan walking back and forth, he had a gun in his hand, and I looked on to my right side and I seen my brother-in-law on the [sofa] bed there. . . . As I approached . . . his bed, I just heard a gurgling sound that was coming out." Id. at 253.

         Aaron was outside with Redmond when they heard the gunshots. At no point did Redmond see Aaron inside the house. Aaron stated he was preparing to go inside and could see Howard on the sofa bed through the screen door when Defendant and Redmond exited the residence. The three men promptly fled in Defendant's vehicle. As they sped off, Defendant threw gun magazines out of the vehicle. Three or four miles later, Defendant turned onto a dirt road and stopped. He wiped the gun with a towel, wrapped the gun in the towel, and instructed Aaron to hide the gun under a pile of bricks off the side of the road. Aaron did so. A while later, Defendant asked Aaron to call the police and report the gun stolen. Aaron refused. Redmond led authorities to the gun the next day. Forensics subsequently established that Aaron's gun was, in all likelihood, the sole murder weapon.[3]

         After the three men fled, Coley met up with Harrison near the house. Coley told Harrison he had been shot and was going in the house to have a look. Coley first approached Howard and determined he was dead. He then went to check on Karen Wolf and Lucilla McGirt in the bedroom. Karen was unresponsive and Lucilla was "sitting against the wall, she was needing some water." Id. at 133. After briefly speaking to Lucilla, Coley tried to close the bedroom door but by this time Harrison too had come inside to look. Harrison first shook Howard to see if he was awake. "And I felt this jelly blood on my hand." Id. at 184. After rinsing her hands, Harrison went to check on her mother. "My mom was facing westward on the floor. Lucilla was laying towards her, looking towards her. I rolled my mom over. I said, 'Mom, Mom, are you awake?' I rolled her over and seen blood coming out of her eyes, nose, and mouth." Id. At this point, Harrison, in hysterics, ran to the kitchen where she found Coley. Coley told Harrison to call for help just before he collapsed on the kitchen floor. In a state of panic, Harrison called 911.

         Officer Jack Thompson of the Seminole Police Department received a 911 dispatch around 2:44 a.m. informing him that four individuals had been shot at Howard's residence in a rural location. Thompson and two other officers arrived on scene about 3:19 a.m. or shortly thereafter. Meanwhile, medic Anke Bernhardt received an emergency call around 3:00 a.m. She arrived on the scene with other medics about the same time as law enforcement. The medics waited outside about twenty minutes while the officers secured the crime scene and made sure the medics could safely enter the residence.

         Thompson first encountered Coley in the kitchen: "There was a large male subject laying on the floor and he was yelling and moaning that he had been shot in the gut." Id. at 292. Coley told Thompson "he thought he was going to bleed out." Id. Thompson next turned to Howard: "[I]t was very obvious he had been shot it looked like twice. There was a lot of blood and I could tell he was dead . . . ." Id. at 293-94. In the front bedroom, Thompson saw two female subjects lying on a floor mattress. Thompson described the entire scene as "tense, " "[k]ind of like something out of a movie." Id. at 294-95.

The first lady I could tell was definitely dead . . . . Then the second one, Ms. McGirt, was laying to her side and I wasn't for sure with her so I leaned over . . . the deceased lady . . . and I was shining my light on her, . . . . And at that time she kind of moaned and moved just a little and, . . . just reactions . . . I kind of drew my fist back, you know, out of fear, . . . . I had just seen all these people had been shot . . . but then I realized she's the victim. At this time I tell the medics that this one's alive and then I kind of back off.

Id. at 295.

         Thompson was in the bedroom when the medics began rendering aid to McGirt. Due to poor lighting, Thompson assisted the medics by shining his flashlight on their subject. McGirt was bleeding. Medics discovered a bullet wound in the back of her right shoulder. Bernhardt observed that McGirt "appeared very anxious. She was having trouble breathing. She looked very nervous and scared, visibly." Rec. vol. I, at 572. "Her vital signs were unstable and her skin was very pale." Id. at 573. "Her voice was shaky." Id. She had difficulty communicating "because she was short of breath." Id. McGirt indicated she was in pain. "She was unable to move any of her extremities or her body parts from the nipple line down." Id. McGirt smelled of alcohol but did not appear intoxicated. Medics placed an occlusive dressing on McGirt's shoulder wound and then applied a C-collar and backboard to stabilize her. They provided her with oxygen and initiated two large IVs, standard protocol for a trauma patient, keeping one IV wide open to stabilize her blood pressure.

         While Bernhardt administered first aid, another medic identified only as Amy sought to calm and orient McGirt by speaking with her in the bedroom. At trial, Officer Thompson, over Defendant's hearsay objection, testified to their conversation:

Q. And you said that [the medics] were trying to engage in conversation with her as they were treating her . . . ? A. Yes.
Q. Okay. And did you hear what she was asked and what her response was to the questions the EMTs were asking her?
A. Yes.
Q. And can you please explain what you heard?
* * *
A. The medic had asked her who had shot her.
Q. What did she say?
A. She had said Dave Magnan or Magna. . . . I didn't know if it was 'Magna' or 'Magnan' but it was something like that.
Q. Were you able to understand that well enough to know it was Dave ...

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