416 F.2d 545 (5th Cir. 1969), 25654, Posey v. United States

Docket Nº:25654.
Citation:416 F.2d 545
Party Name:Billy Wayne POSEY, Cecil Ray Price, Horace Doyle Barnette, Jimmy Snowden, Jimmy Arledge, Alton Wayne Roberts and Sam Holloway Bowers, Jr., Appellants, v. UNITED STATES of America, Appellee.
Case Date:July 17, 1969
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit
 
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Page 545

416 F.2d 545 (5th Cir. 1969)

Billy Wayne POSEY, Cecil Ray Price, Horace Doyle Barnette, Jimmy Snowden, Jimmy Arledge, Alton Wayne Roberts and Sam Holloway Bowers, Jr., Appellants,

v.

UNITED STATES of America, Appellee.

No. 25654.

United States Court of Appeals, Fifth Circuit.

July 17, 1969

Page 546

[Copyrighted Material Omitted]

Page 547

Laurel G. Weir, Herman Alfrod, W. Montgomery Mars, Clayton Lewis, Philadelphia, Miss., Dennis Goldman, H. C. Watkins, Billy R. Covington, Meridian, Miss., Travis Buckley, Bay Springs, Miss., for appellants.

Robert E. Hauberg, U.S. Atty., Jackson, Miss., D. Robert Owen, Atty., Dept. of Justice, Washington, D.C., Jerris Leonard, Asst. Atty. Gen., Merle W. Loper, Atty., Dep. of Justice, Washington, D.C., for appellee.

Before BELL and SIMPSON, Circuit Judges, and MEHRTENS, District Judge.

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MEHRTENS, District Judge:

After a trial on an indictment charging eighteen persons with violating 18 U.S.C. § 241 by conspiring to injure, threaten, oppress and intimidate Michael Schwerner, James Earl Chaney and Andrew Goodman in the free exercise of their Constitutional rights not to be deprived of life or liberty without due process of law, the jury found seven of the defendants guilty and eight not guilty. There was a mistrial as to the other three. Motions for a new trial were denied and the convicted defendants appealed. We affirm.

Appellants assert that numerous errors were committed in the trial. These contentions will be treated seriatim, but it will first be necessary to set forth some of the facts giving rise to this prosecution in order to place appellants' objections in their proper context. Additional facts will be added where necessary in treating the various points.

The evidence adduced at trial reveals that civil rights activity in the Meridian, Mississippi area began early in 1964. About the same time the White Knights of the Ku Klux Klan, a militant white organization supporting racial segregation and advocating destruction of its enemies, formed a Klavern in Meridian. Appellant Bowers, as 'Imperial Wizard,' was head of the state Klan organization. Among those who joined the Meridian Klavern were appellants Roberts, Snowden, Arledge and Barnette. Appellants Price and Posey were members of a Philadelphia Klavern.

Because of his civil rights activity Schwerner was well known to and hated by the Klan and his 'elimination' had been discussed at several meetings. At one meeting the members were advised that his elimination had been approved by Bowers, the Imperial Wizard.

Schwerner, a native of New York, had been active in civil rights in Meridian, Mississippi for about two months prior to the incident which gave rise to the prosecution in question. Chaney had also participated in civil rights work in the same locale. Goodman had arrived in Mississippi only a day or two earlier.

The three had driven to the Mt. Zion Church area, ten miles east of Philadelphia, to investigate the burning of a Negro church. They were riding in a station wagon owned by the Congress of Racial Equality.

After investigating the church-burning the three then began driving toward Philadelphia. As they were fixing a flat tire on the way, Deputy Sheriff Cecil Price arrested Chaney for speeding and held the others 'for investigation.' The three were taken to the county jail at about 4:00 P.M. and were released by Price at 10:30 that night.

While the civil rights workers were in jail Klan members, including James Jordan (a government witness), Roberts, Barnette, Snowden and Arledge, were assembled to drive to Philadelphia and wait for the three civil rights workers' release from jail. Upon arrival they met Price and Posey and began following Price at a high speed, looking for the three civil rights workers. Eventually Price overtook the station wagon and stopped it. He put the three civil rights workers in his car.

With Schwerner, Goodman and Chaney in Price's car, the caravan proceeded south for a few miles. Jordan was let out of one of the cars to act as lookout. He thereafter heard several pistol shots fired and saw the three civil rights workers lying on the ground. Present at the time were Price, Barnette, Posey, Arledge, Roberts and Snowden.

The bodies were placed in one of the cars and taken to a dam site where, with the aid of a bulldozer, they were buried. Subsequently the Klan members reassembled in Philadelphia and then dispersed. Two days later the station wagon in which the three civil rights workers had been traveling was found completely burned out. Their bodies were found six weeks later. Each had died of gunshot wounds.

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I

THE MIRANDA PROBLEM

Appellant Barnette asserts that his written confession was involuntary and made without the warning required by Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), that he had a right to remain silent. We disagree.

Under Johnson v. New Jersey, 384 U.S. 719, 86 S.Ct. 1772, 16 L.Ed.2d 882 (1966), the Miranda test must be applied to this statement taken in 1964 because the case was tried after June 13, 1966, the date Miranda was decided.

After a full scale Miranda hearing, in camera, it was clearly established without contradiction that Barnette, who lived and worked in Cullen, Louisiana, met with two FBI agents in the motel room where they were staying. At the first meeting he was warned that he did not have to make a statement; that any statement made by him could be used against him in court and that if he was brought before a court and needed an attorney but could not afford one, an attorney would be provided for him. 1 Only general Klan activities in Meridian were discussed. No mention was made of the slaying and no statement was made. After two hours Barnette left, stating that he had to drive that night for the trucking company he worked for. He agreed that he would meet the agents the next day. The following day, after first communicating with the agents, he drove his car to the motel to see them. He was again advised that he did not have to talk to the agents; that he had the right to consult an attorney before he talked to them and that any statement made by him could be used in court against him. He thereafter gave the statement relating his part in and the events surrounding the slaying of the three civil rights workers. Barnette at all times during the interview was free to leave any time he wanted to do so. He was never in custody. No force, coercion or restraint of any nature was used and no threats or promises made. He voluntarily waited, of his own accord, until the statement was completed, then he read it, made corrections, wrote a paragraph on the back and then signed it. There was a total absence of restraint, and Barnette had the liberty to leave whenever he wished to go. Thereafter he actually did leave. The statement states that he was again given these warnings. He terminated the first meeting and left freely; he freely returned the next day, drove home after giving the statement, and freely and voluntarily returned the next day to look at pictures and to bring the rifle mentioned in his statement.

The trial judge, upon these facts, found that Barnette knowingly, understandingly and intelligently told the agents 'exactly what he knew and intended to tell them and that the statement was free and voluntary.' The court thereafter instructed the jury that they should not consider the confession unless convinced beyond all reasonable doubt that it was made voluntarily and understandingly.

Miranda warnings apply to 'custodial interrogation' defined as 'questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his

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freedom of action in any significant way,' 384 U.S. at 444, 86 S.Ct. at 1612.

In common with many other circuits, we have held that non-custodial interrogation and statements stemming therefrom do not require Miranda warnings. 2

Nothing in this record indicates that Barnette was in custody or otherwise deprived of his freedom of action in any significant way. There is no evidence whatsoever of the use of force, coercion or intimidation, physical or psychological, actual or implied. The evidence clearly shows that the only reason for his confession was that 'it had been bothering him, and he wanted to get it off his mind.' The Constitutional rights of Barnette did not require the agents to seal his lips or gag him in order to prevent him from making the statement.

We conclude that Barnette was not in custody nor was he deprived of his freedom of action in any significant way, that he gave the confession freely and voluntarily and that therefore the application of Miranda was not required. The district court did not err in overruling his objections.

II-III

THE BRUTON PROBLEM

All appellants, except Barnette, contend that admitting Barnette's confession violated their right of confrontation secured by the Sixth Amendment. They rely primarily upon Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968), wherein a witness testified that one defendant had confessed that he and Bruton, the other defendant, committed an armed robbery. Bruton's co-defendant, protected by the Fifth Amendment, did not take the stand and could not be cross-examined respecting his extrajudicial statement implicating Bruton. The Court held that statements made without opportunity for cross-examination are admissible only against the person who made them and that instructions to the jury not to use the statements of one defendant against another are not an adequate substitute for a defendant's right of cross-examination.

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