United States v. Cherry , 278 F. App'x 452 ( 2008 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
May 22, 2008
No. 07-51047
Summary Calendar Charles R. Fulbruge III
Clerk
UNITED STATES OF AMERICA
Plaintiff-Appellee
v.
ROSE MARY CHERRY, also known as Rose M Cherry
Defendant-Appellant
Appeal from the United States District Court
for the Western District of Texas
USDC No. 6:03-CR-135-ALL
Before WIENER, GARZA, and BENAVIDES, Circuit Judges.
PER CURIAM:*
As a result of actions Defendant-Appellant Rose Mary Cherry took toward
three of her grandchildren while on Fort Hood Military Reservation, she was
indicted on one count of first degree murder and two counts of assault with a
dangerous weapon. She was tried before a jury on all counts. At the end of the
government’s case in chief, Cherry moved for acquittal on the two counts of
assault, basing her motion on her right to confront her accusers because the two
surviving grandchildren, who were named as victims in Counts Two and Three,
*
Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion
should not be published and is not precedent except under the limited
circumstances set forth in 5TH CIR. R. 47.5.4.
No. 07-51047
did not testify. The district court granted the motion and dismissed those
counts. The jury found Cherry not guilty of first degree murder of the deceased
grandchild but found her guilty of the lesser included offense of second degree
murder. The district court sentenced Cherry to 168 months in prison.
Cherry contends that the district court erred in failing to instruct the jury
to disregard all testimony related to the two dismissed counts of the indictment,
but concedes that our standard of review of this claim is for plain error because
she did not object to the jury charge. See United States v. Daniels, 252 F.3d 411,
414 & n.8 (5th Cir. 2001); United States v. Reyes, 102 F.3d 1361, 1365-66 (5th
Cir. 1996). To show plain error, Cherry must show an error that is clear and
obvious and that affects her substantial rights. If she does so, we may exercise
discretion to correct the forfeited error if it seriously affects the fairness,
integrity, or public reputation of judicial proceedings. See Daniels, 252 F.3d at
414.
Cherry concedes that the evidence related to the two counts of assault
against the two grandchildren who survived was properly admitted. She
contends on appeal, however, that the court’s dismissal of those counts on
confrontation issues retroactively rendered all of that evidence inadmissible as
unduly prejudicial evidence of extraneous bad acts. Cherry argues that, without
the evidence of her abuse of the two surviving grandchildren, the jury would not
have found that she acted with malice aforethought in killing the third one.
It is not necessary to address the assertion of retroactive inadmissability
to determine that Cherry cannot show any affect on her substantial rights.
Cherry does not contend that the district court erred in instructing the jury that
it could find malice aforethought in the one homicide if it found that Cherry
acted with callous and wanton disregard for human life. Even if all evidence
related to the other children were excluded, the incontrovertible physical
evidence from the deceased child’s body was overwhelming in its showing of a
callous and wanton disregard for human life. The autopsy evidence showed that
2
No. 07-51047
the child was subjected to great pain and ultimately to death by internal
bleeding as the result of being beaten with a great deal of force more than 100
times with an extension cord or belt . The emergency room physician testified
that some of the wounds showed that the victim had attempted to defend herself
from the beating. The physician described his first view of the wounds as
appalling and noted that all of the medical personnel in the cardiac room gasped
when the victim’s clothes were removed in the attempt to resuscitate her.
Cherry has not shown that any error in the jury instruction adversely affected
the fairness or integrity of her trial. See Daniels, 252 F.3d at 414.
Cherry further asserts that her trial counsel was ineffective for failing to
move for severance, move for a mistrial, and request a jury instruction to exclude
the evidence related to the dismissed counts. We generally do not review claims
of ineffective assistance of counsel for the first time on direct appeal. United
States v. Lampazianie, 251 F.3d 519, 527 (5th Cir. 2001). A 28 U.S.C. § 2255motion is the preferred method for raising an ineffective assistance claim, and
the district court has preserved Cherry’s right to file such a motion. See Massaro
v. United States, 538 U.S. 500, 504-05 (2003). Cherry’s conviction is
AFFIRMED.
3