468 F.2d 652 (5th Cir. 1972), 72-1799, United States v. Bailey

Docket Nº:72-1799 [*]
Citation:468 F.2d 652
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Darwin Clark BAILEY, Defendant-Appellant.
Case Date:September 14, 1972
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit
 
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Page 652

468 F.2d 652 (5th Cir. 1972)

UNITED STATES of America, Plaintiff-Appellee,

v.

Darwin Clark BAILEY, Defendant-Appellant.

No. 72-1799 [*]

United States Court of Appeals, Fifth Circuit.

Sept. 14, 1972

Rehearing Granted Nov. 7, 1972.

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John B. Farese, Ashland, Miss., for defendant-appellant.

H. M. Ray, U. S. Atty., Alfred E. Moreton, III, Asst. U. S. Atty., Oxford, Miss., for plaintiff-appellee.

Before JOHN R. BROWN, Chief Judge, and GOLDBERG and MORGAN, Circuit Judges.

GOLDBERG, Circuit Judge:

This case is a complex drama consisting of many acts and scenes and involving a cast of many players. It reaches us in the form of an appeal from a Mississippi Highway Patrolman's conviction of robbery of a federally insured bank in violation of 18 U.S.C. § 2113(a) and (d). Our role as critics is limited, however, for although in reviewing this case we find much to criticize, we are compelled by precedent to affirm the conviction. For reasons shortly to be stated, we regret that it is not in our power to do otherwise.

I. THE FACTUAL SETTING

The factual setting from which this case arises is extremely complicated. Because the law to be applied turns on precise and narrow factual distinctions, it is necessary that we set out the facts in unusually great detail.

This drama opened at approximately 10:45 in the morning of March 8, 1971, with the armed robbery of the Citizens Bank of Byhalia, Mississippi, by a gunman whose appearance and clothing a bank officer, an assistant cashier, and other witnesses were able to describe. The assistant cashier from who the robber took the money had the presence of mind to include in the cash handed over a bundle of "bait money." 1 As the bank

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alarms sounded, a passing witness saw a car driving from a street behind the bank.

The police were alerted and roadblocks were established. One of those assigned to man a roadblock was appellant, Darwin Clark Bailey, who remained at his post with police officer John Shaw until 2:30 that afternoon. At that time Shaw drove appellant to his home. From there, appellant drove the police car and Shaw drove appellant's car to a spot where they left appellant's car for his wife to have after she left work. The car was later described as similar to the one seen at the bank that morning. Later that night appellant went to the American Legion Hut in Holly Springs, Mississippi. Although it violated Highway Patrol rules and regulations, he often gambled at the Hut and he gambled there that night.

Following an intermission of one week, Inspector H. H. Waycaster, appellant's superior officer, ordered appellant to appear at the sheriff's office in Holly Springs. Appellant later testified that Waycaster told him the meeting was to discuss appellant's gambling activities. Appellant also testified, however, that he had been told by Patrolman Charles C. Hinds that the police suspected that appellant had spent some of the bait money taken in the robbery. Furthermore, Giles W. Crisler, Mississippi Commissioner of Public Safety, testified that he had been informed that day by Assistant Commissioner J. D. Gardner that the bait money had been traced to appellant, whereupon Crisler had ordered Gardner to send Inspectors Waycaster and Wood Stringer to Holly Springs to investigate the matter. Additionally, Stringer testified that he had advised Crisler of the bank robbery suspicions.

Appellant went to the courthouse on March 15, 1971, and was taken to the Sheriff's private office [Interrogation I]. Present were appellant, the Sheriff, FBI Agent Richard T. Rabideau, Stringer, and perhaps two other patrolmen. The purpose for which the meeting was ordered is now disputed. Appellant's position is that he understood that his gambling activities were being investigated. Some of the government's witnesses contend, however, that they thought all along that appellant understood the robbery was actually the object of their investigation. In any event, appellant signed a Miranda warning form [ Miranda Warning I], see Miranda v. Arizona, 1966, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694, although he testified at his trial that he signed it without reading it.

Rabideau testified that after appellant had received the Miranda warning Stringer advised appellant that the Highway Patrol desired to afford him an opportunity to account for his activities of the past week, that appellant indicated a willingness to discuss the matter, and that appellant spontaneously requested that a letter be placed in his file with the Highway Patrol exonerating him of any involvement in the bank robbery. During the course of the meeting, appellant described his actions from the date of the robbery, but he did not discuss further the robbery itself. The principal topic discussed was appellant's gambling. At the conclusion of the meeting, appellant signed a waiver to permit a search to be made of his house and was ordered to appear in Jackson, Mississippi, before Commissioner Crisler the next morning. A search was subsequently conducted by Rabideau, another FBI Agent, and a Deputy Sheriff, but no evidence was seized [Search I].

Appellant testified that later that day Hinds told him that three of the baited bills had been traced to appellant. He testified further that this was the first definite indication he had that he was implicated in the robbery.

On the night of March 15, appellant apparently became despondent and began drinking. He went back to the American Legion Hut and gambled for a short while. He then went to the Colonial Restaurant in Holly Springs and drank black coffee for approximately two hours. About 1:00 a. m. Highway Patrolmen Billie Hastie and Bryant House

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arrived and took appellant to the police station lounge. The other two officers, knowing of appellant's pending appointment in Jackson that morning, stayed with him at the police station for several hours. Appellant contends that he was kept up drinking coffee, but there was testimony that he managed to sleep part of the time. Sometime after 4:00 a. m. the two officers took appellant to his house, where he showered and changed clothes.

From his house, appellant was taken by Patrolman House to Pontotoc, Mississippi, where he met Stringer. Stringer and appellant picked up Waycaster and all three drove to Jackson, arriving around 8:30 in the morning. While they were en route, another FBI Agent searched appellant's house with the permission of appellant's wife [Search II]. Again, however, no evidence was seized.

In Jackson, appellant reported to the office of Personnel Assistant Charles E. Snodgrass. Appellant waited until 11:00 a. m. before he was called into Snodgrass's office [Interrogation II]. Snodgrass testified that he warned appellant of his rights as a precautionary matter [ Miranda Warning II], although no warning affirmatively appears in a typed transcript of the conversation. Appellant signed the transcribed statement, which related entirely to his gambling except for the following remark made by appellant:

"On the night of March 15 I was off duty and out of uniform. I was concerned because those officers investigating the bank robbery in Byhalia seemed to think I had something to do with the robbery and they indicated that three of the twenty-dollar bills taken in the robbery had been traced to me. . . ."

After he signed the statement appellant was directed to the office of Commissioner Crisler, where he was told that he was to be temporarily suspended from the Patrol pending a hearing due to his gambling and drinking habits. Appellant testified that when he returned to Snodgrass's office, Snodgrass interrogated him regarding the bank robbery. Appellant further testified that he denied any involvement in the robbery but that Snodgrass recommended that if he was guilty it would be better to confess. Appellant again denied guilt. Snodgrass, however, recalls that this conversation concerned gambling and that appellant brought up the matter of the robbery. He testified further that he actually advised appellant in purely an off-hand manner that it would be better to confess to any crimes he had committed.

Stringer, Waycaster, and an Assistant Inspector drove appellant back to Holly Springs. They picked up Patrolman House at the courthouse then proceeded to appellant's house. There appellant turned in his Highway Patrol uniform and equipment, pursuant to the suspension. House requested and received permission to drive appellant back to the Sheriff's office alone. On the way, House, who had been appellant's "riding partner," engaged appellant in an emotional conversation relating to the robbery. House pled with appellant to give himself up if he was guilty, saying that it would be better for all concerned if he would do so. Both men began crying and appellant told House that he wanted to confess.

When they arrived at the courthouse, appellant volunteered that he was the man the authorities were looking for. He signed a Miranda warning form [ Miranda Warning III], was questioned [Interrogation III], and signed a handwritten confession admitting the bank robbery and giving a fully detailed account of his involvement. He admitted owning and using the car and the apparel that the witnesses had described. Appellant was thereupon arrested. He then signed another waiver allowing a search of his home [Search III], and the ensuing search turned up the incriminating clothing.

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II. THE TRIAL BELOW

Appellant was first brought to trial before a jury in the United States District Court for the Northern District of Mississippi in October, 1971. The very able district judge conducted a lengthy pre-trial evidentiary hearing on appellant's motion to suppress evidence of...

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