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United States v. Tony

United States District Court, D. New Mexico

January 19, 2018

BRIAN TONY, Defendant.

          Charles E. Knoblauch, Catherine Begaye Attorneys for Mr. Tony

          Joseph Michael Spindle, Nicholas James Marshall Attorneys for the United States



         THIS MATTER comes before the Court on Defendant Brian Tony's Motion for Judgement of Acquittal. [Doc. 117]. The government timely filed a response in opposition. [Doc. 118]. For the reasons set forth below, Mr. Tony's Motion is denied.

         I. Introduction

         Defendant Brian Tony was charged in a three-count Superseding Indictment with one count of First Degree Murder, in violation of 18 U.S.C. §§ 1153 and 1111, and two counts of Witness Tampering, in violation of 18 U.S.C. §§ 1512(b)(1) and (b)(3). [Doc. 56]. The Court conducted a jury trial from September 25, 2017 to September 29, 2017, and on September 30, 2017, the jury returned a verdict of guilty on all counts against Mr. Tony. [Doc. 114]. Mr. Tony orally moved for a judgement of acquittal at the close of the government's case on September 27, 2017, and the Court denied that motion. Thereafter, on October 12, 2017, Mr. Tony filed the instant Motion with respect to the First Degree Murder conviction only.

         II. Legal Standard

         Upon a defendant's motion, the Court “must enter a judgement of acquittal of any offense for which the evidence is insufficient to sustain a conviction.” Fed. R. Crim. P. 29(a). In deciding whether to grant a judgement of acquittal, the Court “must view the evidence, both direct and circumstantial, in the light most favorable to the government, and without weighing conflicting evidence or considering the credibility of witnesses, determine whether that evidence, if believed, would establish each element of the crime.” United States v. Brown, 50 F. App'x 970, 976 (10th Cir. 2002). A district court is permitted “to enter a judgment of acquittal only if the evidence that defendant committed the crime is nonexistent or so meager that no reasonable jury could find guilt beyond a reasonable doubt.” Id.

         III. Analysis

         To convict Mr. Tony of First Degree Murder under 18 U.S.C. § 1111, the government was required to prove beyond a reasonable doubt that (1) Mr. Tony caused the death of John Doe; (2) Mr. Tony killed John Doe with malice aforethought; (3) the killing was premeditated; (4) the incident occurred in Indian Country; (5) Mr. Tony is an Indian; and (6) Mr. Tony did not act in self-defense. See Doc. 111, Instruction No. 18. Mr. Tony concedes that the government proved beyond a reasonable doubt the first, fourth, and fifth elements of First Degree Murder. Accordingly, the Court need only address whether the second, third, and sixth elements have been satisfied.

         a. Mr. Tony killed John Doe with malice aforethought.

         “Malice aforethought may be established by evidence of conduct which is reckless and wanton, and a gross deviation from a reasonable standard of care, of such a nature that a jury is warranted in inferring that the defendant was aware of a serious risk of death or serious bodily harm.” United States v. Soundingsides, 820 F.2d 1232, 1237 (10th Cir. 1987). Malice aforethought may also be established by a defendant's “callous and wanton disregard” for the life of the victim. United States v. Joe, 8 F.3d 1488, 1500 (10th Cir. 1993). The Tenth Circuit Pattern Jury Instructions provide that “[t]o find malice aforethought, [the jury] need not be convinced that the defendant hated the person killed, or felt ill will toward the victim at the time.” Tenth Circuit Pattern Jury Instruction 2.52. “In determining whether the killing was with malice aforethought, [the jury] may consider the use of a weapon or instrument, and the manner in which the death was caused.” Id.

         The government presented ample evidence that Mr. Tony acted with a callous and wanton disregard for John Doe's life. Specifically, the jury heard evidence that Mr. Tony stabbed John Doe approximately 23 times in the head and neck and threw a large rock at his head.

         Dr. Karen Cline Parhamovich, a forensic pathologist with the office of the medical investigator, testified about her findings from her forensic examination of John Doe's body. Dr. Parhamovich testified that she found “[a]t least 23 stab or incised wounds of the head and the neck, and then . . . some blunt force injuries as well.” Transcript of Trial, September 26, 2017, 191:14-18. Additionally, many of the wounds described were on the “back of the head.” Transcript of Trial, September 26, 2017, 196:16. A reasonable jury could ...

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