United States v. Barnhill, 20012.

Citation429 F.2d 340
Decision Date27 July 1970
Docket NumberNo. 20012.,20012.
PartiesUNITED STATES of America, Appellee, v. Freddie Dale BARNHILL, Appellant.
CourtUnited States Courts of Appeals. United States Court of Appeals (8th Circuit)

Robert J. Routh, Lincoln, Neb., for appellant.

Duane L. Nelson, Asst. U. S. Atty., Omaha, Neb., for appellee; Richard A. Dier, U. S. Atty., Omaha, Neb., on the brief.

Before VOGEL, HEANEY and BRIGHT, Circuit Judges.

BRIGHT, Circuit Judge.

Freddie Dale Barnhill appeals his jury-trial conviction for violation of the Dyer Act (18 U.S.C. § 2312), transporting a stolen motor vehicle in interstate commerce. He raises two issues: that Nebraska Highway Patrol officers obtained his confession after violating the rule of Miranda1 by pressing an interrogation upon him against his wishes, and that the prosecution failed to prove the voluntariness of his confession introduced at trial after a Jackson v. Denno2 hearing. We reject these contentions and affirm the conviction.

The substantive facts disclose that Barnhill, by representing himself as a prospective purchaser, obtained possession of a used Chevrolet station wagon from a car dealer in Santa Ana, California, for the purpose of testing it. He failed to return the car. A few days later, he removed the license plates on the vehicle and replaced them with tags he took from his brother's car. Between April 4 and April 6, 1969, defendant and his wife Vicki (age sixteen) drove from California to the outskirts of Rushville, Nebraska, where the Chevrolet station wagon collided with another car. During the accident investigation which followed, Highway Patrol officers, in verifying vehicle registrations, discovered that the station wagon bore license plates which defendant's brother had reported stolen.

Troopers Dan Schenck and Morris McKillip of the Nebraska Highway Patrol, in the presence of other law enforcement officers and after furnishing defendant with a detailed Miranda warning,3 interviewed Barnhill concerning his ownership and use of the station wagon. Trooper Schenck summarized the interview in writing on a printed form and obtained the accused's signature on the summary. That summary, as written and introduced into evidence as a prosecution exhibit, reads:

I, Freddie Barnhill, am 22 years of age and my address is None. I have been duly warned by Dan G. Schenck #199, who has identified himself as Nebraska State Trooper, That I do not have to make any statement at all, and that any statement I make may be used in evidence against me on the trial for the offense concerning which this statement is herein made. Without promise of hope or reward, without fear or threat of physical harm, I freely volunteer the following statement to the aforesaid person:4
Advised took the Plates off his brothers car in Santa Ana, about the 4th of April, Left Santa Ana Thursday Evening, drove Straight to Nebr. did you steal this car — Plead 5th. Randy Barnhill is brother. is Vicki your wife. Yes. Where are you heading — Back East.* Have you ever been arrested for a felony? — Car theft, burglary, possession of drugs (Benies M.M. — )* — The car is stolen.
Plates are in a White Jacket in the car. Took car from st & Flower in Santa Ana was test driving. (sic)

During the course of the trial, when it became apparent that the government intended to elicit testimony relating to Barnhill's statement, the trial court conducted a Jackson v. Denno type hearing to determine the voluntariness of Barnhill's statement. Trooper Schenck testified that after he fully explained the accused's Miranda rights, which Barnhill said he understood, Barnhill, without voicing objection, answered the officer's preliminary questions. When Schenck asked directly: "Did you steal this car?", Barnhill responded: "I plead the 5th." The officer, thereafter, inquired concerning the accused's relationship with Randy Barnhill (his brother) and Vicki (his wife) and his destination (back East). The accused answered these questions without objection. At this point, Officer Schenck left the room to answer a telephone call. McKillip continued the interrogation asking about Barnhill's prior arrests. Schenck testified that he returned in two or three minutes. He heard the accused say: "I might as well tell the truth; car is stolen." Barnhill added that he had taken the car from Santa Ana to test drive it and that its original plates remained inside the car.

The accused testified that when the Miranda warnings were read to him the first time he, "laughing and joking", pled the Fifth Amendment to each sentence of the card. He further testified:

When he finished reading the card they shook me down, and then I asked them — I says: "Was Vicki going to be held and put out in a cell?" And they said "Yes." And I asked the officer — I forget which one it was — if I made a statement, would she be released, and he said "yes."
* * * * * *
* * * from there he read the card to me again; and I said "yes" to every one; and then I made the statement.

Vicki related her version of the incident in the following manner:

* * * as soon as we walked in the door they read the rights off a card.
* * * * * *
Freddie started laughing and he said he pleaded the Fifth Amendment.
* * * * * *
I don\'t think the officers said anything. And then Freddie asked them if they were going to hold me; and they said "yes"; and I guess hehe said "I might as well tell you" — and then he told them, and they wrote it down and then he signed it.

At the conclusion of the Jackson v. Denno hearing, the trial court specifically determined that Barnhill's statement was a voluntary one and not the product of any illegal interrogation.

Significantly, during the hearing on voluntariness, neither Vicki nor Freddie Barnhill commented upon Officer Schenck's short absence from the room during the course of the interrogation. Officer Schenck made that disclosure as a rebuttal witness at the hearing following the defendant's presentation. Thereafter, during the presentation of the defendant's case to the jury, Barnhill testified that the bargain to release his wife probably occurred while Schenck was out of the room answering the telephone call. Vicki similarly tailored her testimony. Trooper McKillip, the other interrogating officer, was not called as a witness.

We consider the claimed violation of the rule enunciated by Chief Justice Warren in Miranda:

Once warnings have been given, the subsequent procedure is clear. If the individual indicates in any manner, at any time prior to or during questioning, that he wishes to remain silent, the interrogation must cease. Miranda v. Arizona, 384 U.S. 436, 473-474, 86 S.Ct. 1602, 1627, 16 L.Ed.2d 694 (1966).

We recognize that the government in offering Barnhill's statement which it obtained in the absence of an attorney bears a heavy burden to demonstrate that the appellant knowingly and intelligently waived his privilege against self-incrimination. See Miranda, supra, 384 U.S. at 475, 86 S.Ct. 1602. In this case, neither the accused nor his...

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6 cases
  • United States v. Crisp
    • United States
    • U.S. Court of Appeals — Seventh Circuit
    • January 11, 1971
    ...amounted to an impermissible attempt to hedge his initial assertion of his right to silence on that matter. Cf. United States v. Barnhill, 429 F.2d 340 (8th Cir. 1970). Defendant further objects that the court improperly admitted an oral confession given to FBI agents while he was incarcera......
  • Haire v. Sarver
    • United States
    • U.S. Court of Appeals — Eighth Circuit
    • February 5, 1971
    ...22 L.Ed.2d 478 (1969), or statements voluntarily or spontaneously given after police furnished all Miranda warnings, Barnhill v. United States, 429 F.2d 340 (8th Cir. 1970); Klingler v. United States, 409 F.2d 299 (8th Cir.), cert. denied, 396 U.S. 859, 90 S.Ct. 127, 24 L.Ed.2d 110 (1969). ......
  • Tasby v. United States
    • United States
    • U.S. Court of Appeals — Eighth Circuit
    • December 17, 1971
    ...a slight deviation from the Miranda prescription, does not negate the over-all effectiveness of the warning. See United States v. Barnhill, 429 F.2d 340, 343 (8th Cir. 1970); Klingler v. United States, 409 F.2d 299, 308 (8th Cir. 1969), cert. denied, 396 U. S. 859, 90 S.Ct. 127, 24 L.Ed.2d ......
  • State v. Russo, 37913
    • United States
    • Nebraska Supreme Court
    • October 15, 1971
    ...self-incrimination without receiving Miranda warnings. See, State v. Perez, 182 Neb. 680, 157 N.W.2d 162 (1968); United States v. Barnhill, 429 F.2d 340 (8th Cir., 1970). The offense occurred on August 27, 1969, but trial did not commence until November 2, 1970. The delay was due to (1) han......
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