The corroborating evidence cited by the government, of course, is highly relevant to whether an evidentiary error was harmless. The passengers observed a lengthy argument, inside and outside the car, during which End of Horn was visibly angry.
Testimony of Robert End of Horn and Quinton Fernandez, passengers in Brave Crow's car, established that they left End of Horn and Brave Crow alone on the side of a road near Wakpala on the morning of the incident.
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End of Horn reported to the first officer that he drove away from the attacking hitchhikers but then realized that Brave Crow was not in the vehicle and returned to the original site.
He informed one officer that hitchhikers (three male and one female) attacked him and Brave Crow when they stopped while driving from Mobridge to Wakpala, but told another officer that the attack occurred when he was driving from Wakpala toward Mobridge.
The defense attacked her credibility because she failed to report the incident, but Little Dog had no apparent bias and explained that her fear of End of Horn accounted for her initial silence.
They left Brave Crow and End of Horn at the side of the road. explained her continued interaction with End of Horn after the sexual abuse as an effort to protect her younger sister from possible abuse. And then she turned around and said, ‘But Ben, you know, that's my personal life.’ ”Rule 807 provides that a hearsay statement is not excluded by the rule against hearsay, even if not covered by an exception in Rule 803 or 804, if the statement (1) has “equivalent circumstantial guarantees of trustworthiness” to statements admitted under the enumerated exceptions, (2) is offered as evidence of a material fact, (3) is more probative on the point offered than any other reasonably available evidence, and (4) will best serve the general purposes of the rules of evidence and the interests of justice. We review the district court's ruling for abuse of discretion. But corroborating evidence does not provide the circumstantial guarantees of trustworthiness contemplated by the Rule. 805, 821 (1990), abrogated on other grounds by Crawford v. Without that testimony, a guilty verdict was still highly likely based on testimony about the heated argument that preceded the assault, the eyewitness account of Little Dog, circumstantial evidence of End of Horn's injured hands and Brave Crow's refusal to identify her attacker, and the implausibility of End of Horn's shifting explanations for an attack by unidentified strangers. The court thus did not abuse its discretion in relying on § 5K2.1 and Brave Crow's death as a factor supporting an upward departure.* * *The judgments of the district court are affirmed. The presentence report mistakenly cited USSG § 2A3.1(b)(1) rather than § 2A3.2(b)(1), but the report correctly identified § 2A3.2 as the applicable guideline, PSR ¶ 24, and the reference to § 2A3.1(b)(1) apparently was a typographical error. Join us in improving the health outcomes of 2.2 million American Indians and Alaska Natives.