United States v. Sully

1

UNITED STATES OF AMERICA, Plaintiff v. TINA SULLY, Defendant

No. 4:22-cr-40013

United States District Court, D. South Dakota, Southern Division

November 7, 2023

MEMORANDUM OPINION AND ORDER

LAWRENCE L. PIERSOL, UNITED STATES DISTRICT JUDGE

Pending before the Court is Defendant's motion for a new trial based upon newly discovered evidence. (Doc. 245). The Government resists the motion. (Doc. 258). For the following reasons, the Court grants the motion in part and denies it in part.

An additional matter is ripe for resolution. The Government filed a motion for revocation of presentence release requesting that Defendant be taken into custody immediately. (Doc. 239). The Defendant responded, (Doc. 242), and the Government replied, (Doc. 244).

BACKGROUND

Information pertinent to resolution of Defendant's motion for a new trial is summarized as follows:

The second superseding ten-count indictment alleged Defendant had abused three children, C.S., D.A.S. a/k/a D.F.H. (hereinafter D.F.H. in accordance with his stated preference), and G.S Ill. while they were in her care at different times from 1998 to 2022. (Doc. 33). The indictment alleged two counts of assault with a dangerous weapon and one count of felony child abuse of C.S.; four counts of assault with a dangerous weapon and one count of felony child abuse of D.F.H.; and one count of assault with a dangerous weapon and one count of sexual contact with a minor involving G.S. III. The alleged offenses involving each child did not overlap with those of another child.

The case was tried to a jury during August 22-25, 2023; the court declared a mistrial when the jury was unable to reach a verdict. (Doc. 160). This Court conducted a second trial during September 9-12, 2023. The verdict was guilty on all counts. (Doc. 237).

The charges involving C.S., Counts 1-3, were alleged to have occurred between November 26, 2017, and May 23, 2022, ending on the latter date when 12-year-old C.S. appeared at a neighbor's house alleging abuse by the Defendant. The child was admitted to Wagner Community Memorial Hospital and the case was subsequently investigated by the Yankton Sioux Tribe Police Department and Child Protective Services. The child was interviewed by a forensic interviewer at Child's Voice, a medical child advocacy center.

At trial, C.S. was accompanied by an adult support assistant and testified at length about abuse inflicted by the Defendant. She described being hit with a belt, hangar, and plastic tubing by Defendant, who also stomped on her back, pulled her hair, and squeezed her neck to choke her. She testified that food was withheld from her. She stated she wanted to attend school but was told she couldn't because she would lie and steal from the teachers. She described being told no one loved her or ever would. She said she loves the Defendant. She was cross-examined and admitted to being in trouble at the foster placement where she resides, physical fights with her siblings, and wanting to go home. She stated she sometimes had accidents that required her to wear pull-up underwear.

The neighbor who found C.S. at her property testified about discovering C.S. and repeated some of the statements the child made at the time. The certified nurse practitioner who treated C.S. testified and described some of the injuries alleged to have been inflicted by Defendant. The Child's Voice forensic interviewer testified about the protocol used to conduct interviews, and a tape of her interview with C.S was played. An investigator from the Yankton Sioux Tribe Police Department who had been called to respond to the scene testified and laid the foundation for admission of photographs depicting injuries to C.S.'s thigh, torso back, neck, breast, bicep, crown of the head, and buttocks. The investigator's bodycam video with audio depicted an interview between an investigator and C.S. to determine what had occurred, with what instruments, and who the perpetrator was. During the interview, the child provided information about why she was wearing pull-ups instead of underpants, as well as information about why she did not attend school.

A pediatrician from Child's Voice and Sanford Health testified about physical and psychological aspects of child abuse, including how children might disclose abuse, family dynamics, and long-term effects. She described her examination of C.S. which revealed many physical and emotional injuries, and she related the child's account of these injuries. All witnesses were cross-examined by the defense. The jury had the opportunity to observe the testimony of the witnesses, as did the Court.

The charges involving D.F.H., Counts 4-8, were alleged to have occurred during September 23, 2003, through June 28, 2007. At the time of trial, D.F.H. was 24 years old, and testified about events that occurred when he was 4-8 years old and resided with Defendant and her husband, first as a foster child and then as their adopted son. He described that he was fearful in Defendant's house, and that she hit him with a belt, extension cord, flyswatter, and hand. He testified Defendant choked him and deprived him of food. He said he ran away more than once and eventually was removed from Defendant's home and placed in various institutions. He testified he does not know C.S. or G.S. Ill. and that their time in Defendant's home did not coincide with his. On cross-examination, D.F.H. testified about various placements once he left Defendant's home and the difficulty he experienced in those settings which led to misconduct on his part. He testified he thinks he was born with Fetal Alcohol Syndrome.

The charges involving G.S. III., Counts 9 and 10, were alleged to have occurred during April 1, 1993, to March 31, 1998. At the time of trial, G.S. Ill. was 35 years old. He testified he wanted to forget what occurred when he was 5-6 years old and residing with Defendant and her husband, who are his aunt and uncle. He described the Defendant beating him with a belt and withholding food from him. He described that the Defendant once grabbed his penis and scolded him for suspected sexual behavior when he was six years old. From the scant evidence it appeared that this was discipline that was not a criminal offense. He described Defendant washing his mouth out with soap. He admitted he stole food when he was deprived of it. Later in life he was convicted of two felonies and ten shoplifting offenses. He said he was homeless and on drugs for periods of time.

The above paragraphs describe the substance of the testimony on the assault and abuse charges. The Parties stipulated to various matters, including that the offenses occurred in Indian Country and that the children and Defendant are Indians. An FBI agent provided background evidence on these issues, and also provided maps and diagrams of the Defendant's house and other aspects of the area's geography.

Following the Government's presentation of evidence, the Defendant moved for a judgment of acquittal under F.R. Crim. P. 29. The Court denied the motion with respect to Counts 1-9. The Court took the motion with respect to Count 10 under advisement, and informed the Parties it was a close question whether the evidence was sufficient for conviction.

The defense called four of the children who resided in the home with Defendant and her husband while C.S. lived there. All testified they were treated well in the home and did not observe any mistreatment of C.S. by Defendant. They described misbehavior by C.S. which resulted in appropriate punishment. One adopted son who is now an adult still residing in the house described C.S. as troubled, stubborn, and prone to acting out. He described Defendant as a great mother who took children in bad situations into her home. He stated he was only six years old when D.F.H. left the home, but that he remembered him as a bad kid. Another son who is now an adult still residing in the house described C.S. as having behavior problems and wanting to be around Defendant. He also described D.F.H. as having serious behavior problems that were worse than C.S.'s. The witnesses were cross-examined.

The defense called a pediatrician from Sanford Medical system who had treated C.S. when she was a patient at the hospital a decade earlier. She described that C.S. was underweight and had skin problems. The defense called a nurse practitioner from the Indian Health Service who testified she had placed more than ten children in the Sully home, and that she never observed signs of abuse or had any complaints of abuse made to her. On cross-examination she stated she was not the caseworker for C.S. or for D.F.H. once he was adopted by the Sullys. The defense called Defendant's sister, who resided with Defendant and her husband for a period of time, and never saw any problem of abuse. She reported being 13 years old when she observed G.S. Ill. engage in misconduct when he was 4-5 years old.

The defense called Defendant's husband as a witness. He described how Defendant and he had taken into their home approximately twenty foster children over a period of twenty years. He testified that none of the children had made any complaints of abuse and that he never witnessed any abuse or physical manifestations of abuse. He stated D.F.H. had engaged in such aggressive behavior that the other children were not safe, and as a result, Defendant and he had to cancel their adoption of him and return him to the authorities. He testified that G.S. Ill. had lived in the home a short time, had been abused by his own father, and engaged in serious misbehavior. He offered his opinion that the allegations against Defendant were politically motivated and had affected his re-election to a tribal office.

To prove the seven...