372 F.2d 710 (8th Cir. 1967), 18272, Pope v. United States

Docket Nº:18272.
Citation:372 F.2d 710
Party Name:Duane Earl POPE, Appellant, v. UNITED STATES of America, Appellee.
Case Date:February 13, 1967
Court:United States Courts of Appeals, Court of Appeals for the Eighth Circuit
 
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Page 710

372 F.2d 710 (8th Cir. 1967)

Duane Earl POPE, Appellant,

v.

UNITED STATES of America, Appellee.

No. 18272.

United States Court of Appeals, Eighth Circuit.

February 13, 1967

Rehearing Denied March 14, 1967.

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[Copyrighted Material Omitted]

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Wallace M. Rudolph and Robert B. Crosby, Lincoln, Neb., for appellant.

Theodore L. Richling, U.S. Atty., Omaha, Neb., for appellee.

Before VOGEL, Chief Judge, and VAN OOSTERHOUT, MATTHES, BLACKMUN, MEHAFFY, GIBSON, and LAY, Circuit Judges, sitting en banc.

BLACKMUN, Circuit Judge.

The defense on this appeal concedes that shortly before noon on Friday, June 4, 1965, Duane Earl Pope, when armed with a gun, robbed the Farmers State Bank at Big Springs, Nebraska, a federally insured institution, of $1,598, and, in the course of that robbery, shot and killed three employees of the bank and seriously wounded a fourth.

A 6-count indictment was returned on June 22 charging Pope with violations of the bank robbery statute, 18 U.S.C. § 2113(a), (b), (d), and (e). He entered a plea of not guilty. The trial consumed most of the month of November 1965. After deliberating for two days the jury convicted Pope on all six counts. The verdict on the last three counts, which charged the killing of the respective bank employees, directed, as § 2113(e) permits, that the defendant be punished by death. Judge Van Pelt imposed concurrent sentences of 20, 10 and 25 years, respectively, on the first three counts, and a sentence of death on each of the last three counts. This court stayed execution of the death sentences pending appeal.

The evidence. There is no conflict as to the basic facts. Many of them were conceded by the defense's Judicial Admission filed just prior to trial.

Duane, at the time of the offense, was 22 years of age. He had graduated the preceding Sunday from McPherson College, a denominational school at McPherson, Kansas. He was one of eight children born of farm parents. He attended elementary and high school in Roxbury. He led the normal life of a farm boy. He was an ordinary student and perhaps less of a disciplinary problem then the average boy. He was very active in both the athletic and extracurricular programs of his high school. He engaged in football and basketball for four years and in track and baseball

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for three. He participated in band, glee club, chorus and dramatics. He was president of his senior class. He was a member of the student council for two years. He was captain of the basketball team and co-captain of the football team his senior year.

Duane was encouraged by the high school faculty to go to college. He enrolled at nearby McPherson. He received student loan assistance there and participated in a work program. At college he was an average student and a fine athlete. He was placed on scholastic probation at times but was able to emerge from it. In his last year he was co-captain of the football team and was named all-conference defensive end by members of opposing teams.

There is evidence to the effect that at his father's work shop and at the college laboratory he worked on silencers for guns; that he designed and constructed at least two of these devices; that on May 15, 1965, he purchased a revolver to which he affixed one of the silencers; that he tested it in his father's barn and found it not to be effective; that on May 27, with a down payment he purchased a .22 Ruger automatic pistol; that he welded a coupling to this gun so that a silencer could be attached to it; that he described this coupling as something else to his father and an instructor; and that he made a breast plate out of a tractor blade.

On Wednesday, June 2, following his graduation, Duane was at home. His parents were there. He went upstairs and dropped a rifle out the window and then went outside, picked it up, and put it in his 1939 Buick. He had already placed the Ruger and the silencer in the automobile. He borrowed $50 from his father, told his parents that he was going to Oklahoma to look for work, and departed. He drove north some 30 miles to Salina, Kansas, where he registered in his own name at a motel. The next morning he rented a 1965 Chevrolet from the Hertz Agency and eventually drove it to Ogallala, Nebraska, where he registered in his own name at a motel. That evening, after dark, he drove the few miles to Big Springs, rode around the bank there, and returned.

He arose early the next morning, placed the gun in his brief case, and drove as far as Brule on the way to Big Springs. There he turned off the highway and checked a back road south of Brule which he used after the robbery. While on this road he removed the automobile's license plates.

Duane then drove to Big Springs, and went by the Farmers State Bank. He passed it slowly a second time, noticing that customers were there. He approached it again shortly after eleven a.m. This time only employees were inside. He parked by the bank, took his brief case containing the Ruger and the affixed silencer, and entered. He inquired of Andreas Kjeldgaard, the president, about a land development loan. Mr. Kjeldgaard told him that the bank did not make a loan of that kind but went to get a telephone book to find the number of another area bank which might make the loan. Duane came around the end of the counter into the employees' area, drew out the gun, and told Mr. Kjeldgaard to put the bank's money in the brief case. Employee Franklin Kjeldgaard, the 25-year-old nephew of the president, came to assist his uncle. They removed the money from the cash drawer under the counter and put it in the brief case. Duane then ordered employee Lois Ann Hothan to get money out of the vault. She entered the vault, brought out some one dollar bills, and placed them in the brief case. A fourth employee, Glen Hendrickson, was sitting at a table while all this was happening.

Duane then ordered all four persons to lie on the floor face down. All complied. He shot the elder Kjeldgaard in the back and at the rear of the head. The gun jammed. He unjammed it and then shot each of the other three in the back and again in the neck or head. Franklin Kjeldgaard did not lose consciousness. He was able to see and hear what took place. The other three died at the scene.

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After Duane left the building, Franklin was able to sound a burglar alarm. Franklin survived and testified at the trial.

When he left the bank Pope drove to the main highway and then took the back road running south of Brule. He traveled southeast at high speed. He unscrewed the silencer from the Ruger and threw it out the window of the car. Farther on, he stopped the car, got out, and threw the gun into a field. He continued traveling fast, hit a bump and punctured his gas tank. He purchased gas at Wauneta and attempted to plug the hole with a rag. The station attendant refused to accept his expired credit card or his check and Pope drove off after giving a false address. He later purchased gas for cash and put the license plate back on the car. He eventually reached Salina and registered at the same motel in his own name. He obtained his 1939 Buick. He went to bed but at two a.m. he got up, returned the rented automobile to Hertz, and then drove his own Buick to his parents' home. He did not go into the house but left $150, together with a note, in the mail box. The note advised his father that he was returning the $50 he had borrowed and asked that he deposit the other $100 in the defendant's bank account.

He went on to Wichita where he abandoned the Buick. He bought a bus ticket to Enid, Oklahoma, and then proceeded by bus to Oklahoma City, by plane to El Paso, and by bus to San Diego where he arrived June 6. He placed money and and another gun he was carrying in a storage locker and went to Tiajuana, Mexico. He attended a bull fight. He returned to San Diego and checked into a hotel under a false name. On June 7 he bought a used car under another name. While purchasing the car he saw a newspaper and read of the Big Springs robbery. His car broke down. He took a bus to Las Vegas where he gambled and amused himself until Thursday night, June 10, when he read in a newspaper a message from the president of McPherson College appealing to him to turn himself in. He decided to take this advice. On the morning of June 11 he flew to Kansas City, Missouri, and checked into a hotel under a false name. He telephoned the McPherson president and then the Kansas City police.

At the trial teachers, staff and classmates of his high school and his college years and businessmen and employers at Roxbury and McPherson testified that Duane's conduct in their experience was exemplary. His high school superintendent could not recall any problem of discipline or behavior with respect to Duane. His Roxbury employer considered him 'the best man I ever hired'. His college football coach described him as cooperative and as giving him 'the least trouble of anybody that I had'. His harvest employer said that he did his work 'better than anyone else'. His home town banker, from whom he had borrowed money, described his attention to his credit responsibilities. The McPherson buildings and grounds superintendent, under whom Pope had worked during his college years, said he was 'the best of any of them'.

Except for parking tickets and one minor traffic violation, there is no evidence that Duane Pope had ever been in difficulty with law enforcement authorities.

The defense's seven basic points on appeal concern: (1) two confessions; (2) a court-ordered psychiatric examination; (3) the selection of the jury, and, specifically, (a) the Nebraska selection system, (b) the exclusion of persons with scruples against capital punishment, and (c)...

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