The following story was written and reported by Evelyn Red Lodge. All content © Native Sun News.

MINNEAPOLIS , MINNESOTA –– An Oglala Sioux man was unsuccessful in his appeal filed this year for his 2005 vehicular manslaughter conviction. Conflicting statements, Amendment violations, and ineffective counsel were at issue.

Donovan New was traveling in a vehicle with his cousin and his father on a highway on the Pine Ridge Indian Reservation in 2005. Appeals court documents say New and his cousin consumed alcohol heavily on that day when the vehicle they were traveling in went into the ditch rolling twice.

The vehicle was traveling an estimated 89 miles per hour when it crashed. New’s father and cousin were fatally injured and New was flown to Rapid City Regional Hospital. New’s blood alcohol level was .320 and marijuana was in his system at that time.

After receiving “a variety” of medications for spinal injuries, difficulty breathing, and chest and shoulder pain, New was interviewed by an FBI agent the next day.

Documents say New told the agent he had been driving at the time the vehicle crashed. Several weeks later, New went to Pine Ridge to reclaim property from the crash when he told a BIA agent he was the driver at the time of the crash.

But, he also indicated that others had told him he was not the driver. Later in 2005, New was indicted on two counts of involuntary manslaughter. He then moved to suppress statements he gave to the FBI agent claiming violations of his Fifth Amendment and Miranda rights.

United States District Judge, Karen E. Schreier denied his motion to suppress, and New had testified in court he could not remember the crash or drinking at the time of the accident. The South Dakota Federal District jury found New guilty on the two counts.

New was sentenced to 72 months imprisonment for each count running consecutively. After unsuccessful attempts at arguing several issues appealed in district court in 2008, New appealed to the Eighth Circuit Court of Appeals raising four issues allowed under his certificate of appeal.

In the first issue, New entered two claims. First, that “he was deprived of his Sixth Amendment right to effective counsel because counsel failed to litigate properly his motion to suppress statements he gave to the FBI agent. The Eighth Circuit did not agree.

Second, New also argued that when he was interviewed by the FBI agent in his hospital room, he should have had a right to counsel under the Sixth Amendment. The Eighth Circuit disagreed stating, “The right to counsel does not attach until the government commences adversary judicial criminal proceedings against the defendant.”

In the second issue, New claimed his attorney was ineffective, because the attorney did not “argue that the evidence was insufficient to support his convictions.”

The Eight Circuit disagreed, stating, “Absent contrary evidence, we assume counsel’s failure to raise a claim was an exercise of sound appellate strategy.” Further, “There were sound reasons for New’s attorney to omit” New’s evidentiary challenges.

New raised a question as to why the government’s accident reconstruction expert was more credible than the defense expert. The eighth circuit replied, “Questions of credibility are reserved for the jury.”

In his third issue, New argued his right to due process of law was violated, because the court declined to order an evidentiary hearing on four of his six ineffective counsel claims. The Eighth Circuit found that New was not entitled to relief where his claim was inadequate for his failure to specify why a hearing should be held.

The Eighth Circuit affirmed the judgment of the District Court noting “voluntary intoxication is not a defense to general intent crimes, including the involuntary manslaughter offense.”

(Contact Evelyn Red Lodge at welakota@yahoo.com)

8th Circuit Decision:
New v. US (August 31, 2011)