400 F.2d 935 (5th Cir. 1968), 25549, Rivers v. United States

Docket Nº:25549.
Citation:400 F.2d 935
Party Name:Willie Samuel RIVERS, Appellant, v. UNITED STATES of America, Appellee.
Case Date:September 16, 1968
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit

Page 935

400 F.2d 935 (5th Cir. 1968)

Willie Samuel RIVERS, Appellant,


UNITED STATES of America, Appellee.

No. 25549.

United States Court of Appeals, Fifth Circuit.

Sept. 16, 1968

Page 936

James M. Pace, Jr., Bainbridge, Ga., for appellant.

Walker P. Johnson, Jr., Asst. U.S. Atty., Macon, Ga., for appellee.

Before JOHN R. BROWN, Chief Judge, BELL, Circuit Judge, and HOOPER, District Judge.

JOHN R. BROWN, Chief Judge:

Appellant was convicted of violating 18 U.S.C.A. § 2114 1 for attempted robbery

Page 937

of a rural mail carrier and was sentenced to twenty-five years in prison. The twenty-five year sentence required a finding in this case that in committing the robbery Appellant wounded the victim. He contends on appeal that statements he gave to state and federal officers while in custody and admitted into evidence against him were not voluntary, that the statements led to the recovery of evidence which was improperly admitted, and that the statements were not properly adjudged voluntary in accordance with Jackson v. Denno, 1964, 378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d 908. After close examination of the record, we are compelled to conclude that fundamental error of constitutional proportions of the Wade-Gilbert-Stovall type, not raised at trial or on appeal, was committed by allowing testimony into evidence regarding an out-of-court identification of the accused while he was unrepresented by counsel. We thus vacate and remand for further proceedings.

The facts are not complicated. On August 29, 1967-- the date is important--James Moore, a rural mail carrier, delivered a C.O.D. parcel to a residence in Seminole County, Georgia. The charge was $20 and the package was addressed to Alvin Hopkins. Alvin paid for the package, and Moore observed a second young man with Hopkins at that time. Later, as Moore drove down the road, that second man stopped him and asked for stamps. Moore handed him the stamps and when he turned his back to reach into a change box, he heard an explosion and felt something strike him in the back of the head. Looking around, Moore saw the young man, positively identified at trial by Moore as the same man as the Appellant here, 2 standing by the car with a pistol in his hand. Seriously but not fatally wounded, Moore managed to drive away to get help. Moore proceeded to a house over a mile away, bleeding profusely all the way. He stopped his car and got a friend, Wilford Tyler, to take him to a nearby doctor.

Tyler then left Moore and the doctor and went into Donaldsonville, Georgia, to inform local authorities that a shooting had occurred. Sheriff White was summoned and he went immediately to find Moore. Sheriff White found Moore at the local hospital and was told that the assailant was 'one of the boys out at Ish Hopkins.' The Sheriff and other officers hurried out to the Hopkins' home and there apprehended Appellant and his cousins the Hopkins twins, Alvin and Calvin. Thus far all is in order, but then the Sheriff, who was hardly one expected to read the latest advance sheets of Supreme Court opinions, especially three then scarcely two months old, told the other officers to take the three young men to the hospital to let Moore identify the gunman.

Just as the carload of officers and suspects arrived at the local hospital, Moore was being placed in an ambulance for transportation to another hospital in Columbus, Georgia. The events that then transpired are revealed in Moore's testimony:

'A After I got to the doctor and they placed me in the ambulance, Carl Thompson and Morris Stewart, GBI Agent Morris Stewart, drove up at the hospital beside the ambulance and pulled Mr. Rivers out of the car and showed him to me.

Page 938

Q Did they just pull him out? Was he by himself?

A No, they pulled another one of the twins out with him; and I told Carl when he pulled him out of the car and when he started to get the other man, 'I said Carl there's no use, this is the man that shot me here.'

Q Pointing to whom?

A Mr. Rivers.

Q Willie Samuel Rivers?

A Yes sir.

Q Did you say anything else to him?

A I said, 'Why did you shoot me?'

Q Did he say anything to you?

A He said 'I ain't shot you.'

Q What, if anything, did you say concerning the other boy or boys, young men that were there? Who was that Calvin and Alvin Hopkins?

A That's right. Well, when they brought one of the twins out of the car, I don't know which one it was, I told him, I said 'There's no use in pulling anybody else out of that car.' I said 'I know this is the boy that shot me.'

Q Then, you were taken to Columbus; is that correct?

A That's right.'

After this identification, Sheriff White ordered that the three young men be taken into town and placed in the county jail so they could be questioned. Each of the young men was given the required Miranda warnings which were read to them from a printed card. Appellant, 18 years of age with an eleventh grade education, indicated he understood his rights and didn't want a lawyer. The Hopkins boys were questioned first, then Appellant was questioned, but he volunteered nothing. Persisting in his efforts, the Sheriff asked, 'Didn't Mr. Moore, the rural mail carrier, point his finger in your face and ask you why you shot him?' and 'Don't you think Mr. Moore knows who shot him?' In spite of this, Appellant continued to assert his innocence.

Changing his tack, the Sheriff then called the Hopkins boys' aunt and had her come down to the jail. She told her nephews that if they didn't tell the truth, 'you'd better not come back to my house, if he (the Sheriff) don't kill you or get you, I will.' After their aunt left, the Hopkins boys, anxious to be released, pressured Appellant to tell the Sheriff what had happened since Moore 'had done picked him out.' The Sheriff was called to the cell, and Appellant then admitted that he had shot Moore to get the money but insisted that he had used a rifle. On the Sheriff's own description, Appellant was emotionally upset, crying and the like, at this time.

Three days later, presumably in order to clear up some discrepancies in Appellant's oral statement to the Sheriff, but more probably to get a written statement, a Postal Inspector interviewed Appellant. Before this was done Appellant was again fully advised of his Miranda rights. However, the Postal Inspector also showed Appellant 18 U.S.C.A. § 1001, which deals with penalties for making false statements. In this interrogation the Inspector elicited a signed statement in which Appellant admitted (as he had orally to the Sheriff) shooting Moore, but continued to insist that he had used a rifle instead of a pistol. Still not satisfied with Appellant's statement since all the evidence suggested the use of a pistol, the Inspector repeated five days later the identical procedure he used during his first interview with Appellant and obtained a statement acknowledging that the weapon used was a pistol, not a rifle, and this led to the recovery of the pistol used in the assault.

At trial, the District Judge determined the all the admissions and the gun were admissible over Appellant's objections. No objection was made to Moore's ambulance stretcher out-of-court identification of Appellant. Although some testimony about the existence of confessions was admitted prior to the jury's being excused, the Judge did not allow the jury to hear any part of them until a hearing was conducted outside the jury's presence

Page 939

and he concluded that the statements were voluntary. No objection was made to this procedure.

Generally courts are not disposed to consider errors which have not been brought properly to their attention, but 'we may, however, carefully examine the entire record to determine whether it reveals plain errors affecting substantial rights noticeable under Rule 52(b), Federal Rules of Criminal Procedure, 18 U.S.C.A.' Rogers v. United States, 5 Cir., 1962, 304 F.2d 520, 522; Smith v. United States, 1962, 118 U.S.App.D.C. 235, 335 F.2d 270, 274; cf. Amos v. United States, 1921, 255 U.S. 313, 41 S.Ct. 266, 65 L.Ed. 654. Cautious as we are, and should be, in taking such a course, we feel that plain error of constitutional proportions was committed at this trial. Spectacular as it was, and so evident on the face of the record so that it is bound to be brought up later, we think it equally appropriate to consider it at this time. See Alexander v. United States, 5 Cir., 1968, 390 F.2d 101, 103 n. 3.

It is an understatement, of course, to say that the rights of a criminal defendant in pre-trial proceedings have expanded greatly in just the last few years. 3 But in no area of the law was the development quicker, more startling, and perhaps more unexpected than the recent decisions regarding the right to counsel during pre-trial out-of-court identification procedures and confrontations between suspects and witnesses. 4

The decisions of the Supreme Court in Wade 5 and Gilbert 6 put it in terms of right to counsel. They held that confrontations between suspects and witnesses were a 'critical stage' of the criminal proceedings against an accused and counsel must be present at these confrontations unless waived. 7 With Miranda on the books, it is indisputable that most, perhaps all, confrontations occurring after arrest will fall within the rules announced in Wade and Gilbert. We recognize the risk of ever letting a dissenter speak momentarily for the Court as to what it has really held, but Mr. Justice White, dissenting in Wade said 'the rule applies to any lineup, to any other techniques employed to produce an identification and a fortiori to a face-to-face encounter between the witness and the suspect alone, regardless of when the identification occurs, in time or place, and whether before or after indictment or information.' 8

Page 940

Any suggestion that the rules announced apply only to formal lineups is seriously weakened by Stovall. 9...

To continue reading