U.S. v. Delay

• Decision Date: 30 July 1974
• Docket Number: No. 74-1127,74-1127
• Parties: UNITED STATES of America, Appellee, v. Dallas Ray DELAY, Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 1360

500 F.2d 1360

UNITED STATES of America, Appellee, v. Dallas Ray DELAY, Appellant.

No. 74-1127.

United States Court of Appeals, Eighth Circuit.

Submitted June 12, 1974.

Decided July 30, 1974.

John Gianoulakis, Kohn, Shands, Elbert, Gianoulakis & Giljum, St. Louis, Mo., for appellant.

Richard E. Coughlin, Asst. U. S. Atty., St. Louis, Mo., for appellee.

Before LAY, HEANEY and ROSS, Circuit Judges.

ROSS, Circuit Judge.

This is an appeal from a jury verdict finding Dallas Ray Delay guilty of one count of Bank robbery in violation of 18 U.S.C. Sec. 2113(a) and three counts of killing a person in an attempt to avoid apprehension for the offense of bank robbery in violation of 18 U.S.C. Sec. 2113(e). On appeal, Delay designates various assignment of error. We affirm the judgment of conviction, but vacate the sentences under Counts I, II and III of the indictment.

The evidence indicates that Delay abducted the president of the Bank of Grandin, Missouri, Mr. Bob Reid Kitterman, and his wife and daughter. Holding Mrs. Kitterman and the daughter as hostages, Delay strapped an explosive device to the back of Mr. Kitterman and directed him to go to the bank, withdraw funds, and return to the abduction site. While withdrawing the funds from the bank safe deposit box, Kitterman made certain declarations to bank employees indicating the nature of the coerced withdrawals, the presence of the electronic device on his person, and the fact of the detention of his wife and daughter. After placing $10,850 into a bank bag, Kitterman returned to the wooded area where his wife and daughter were being detained by Delay. The bodies of the three Kittermans were found approximately one and one-half hours later tied to trees in a wooded area outside of town. Each had been shot in the head.

Double Jeopardy

Delay first asserts that by this federal prosecution, he has twice been put in jeopardy for the same offense in violation of his fifth amendment rights. Delay had previously pleaded guilty to three counts of first degree murder in Missouri state court in violation of V.A.M.S. 559.010. He received therefor three consecutive life sentences under V.A.M.S. 559.030.

That state conviction, however, does not bar a subsequent federal prosecution. United States v. Lanza, 260 U.S. 377, 382, 43 S.Ct. 141, 67 L.Ed. 314 (1922) held that where two sovereignties had prohibited the same acts within their constitutional authority and each was punishing a breach of its prohibition, a subsequent federal prosecution did not violate the fifth amendment:

We have here two sovereignties, deriving power from different sources, capable of dealing with the same subject-matter within the same territory. Each may, without interference by the other, enact laws to secure prohibition, with the limitation that no legislation can give validity to acts prohibited by the amendment. Each government in determining what shall be an offense against its peace and dignity is exercising its own sovereignty, not that of the other.

It follows that an act denounced as a crime by both national and state sovereignties is an offense against the peace and dignity of both and may be punished by each.

Id. at 382, 43 S.Ct. at 142. Lanza is still good law today. Indeed, in Abbate v. United States, 359 U.S. 187, 195, 79 S.Ct. 666, 3 L.Ed.2d 729 (1959), the Supreme Court specifically declined to overrule Lanza. The justification for the continued force and vitality of Lanza was expressed:

[I]f the State are free to prosecute criminal acts violating their laws, and the resultant state prosecutions bar federal prosecutions based on the same acts, federal law enforcement must necessarily be hindered. . . . But no one would suggest that, in order to maintain the effectiveness of federal law enforcement, it is desirable completely to displace state power to prosecute crimes based on acts which might also violate federal law. This would bring about a marked change in the distribution of powers to administer criminal justice, for the States under our federal system have the principal responsibility for defining and prosecuting crimes.

Id. at 195, 79 S.Ct. at 671. Accordingly, Delay's prior Missouri conviction did not bar the instant prosecution.

Proof of Intent

Delay's next assignment of error concerns the government's alleged failure to prove the specific intent necessary for the commission of an offense under 18 U.S.C. Sec. 2113(e). Delay argues that the only evidence of his intent to kill to avoid apprehension was an extrajudicial admission made prior to the trial in federal court but subsequent to his conviction in state court. Unless corroborated by independent evidence, he maintains, that evidence is insufficient to prove intent. As authority for that position, he relies on Opper v. United States, 348 U.S. 84, 75 S.Ct. 158, 99 L.Ed. 101 (1954) and Gay v. United States, 408 F.2d 923 (8th Cir.), cert. denied, 396 U.S. 823, 90 S.Ct. 65, 24 L.Ed.2d 74 (1969). Delay's argument, however, is deficient.

The corroboration requirement in federal court is explicated in Wong Sun v. United States, 371 U.S. 471, 489-490 n. 15, 83 S.Ct. 407, 418, 9 L.Ed.2d 441 (1963):

Where the crime involves physical damage to person or property, the prosecution must generally show that the injury for which the accused confesses responsibility did in fact occur, and that some person was criminally culpable. A notable example is the principle that an admission of homicide must be corroborated by tangible evidence of the death of the supposed victim. See 7 Wigmore, Evidence (3d ed. 1940), Sec. 2072, n. 5. There need in such a case be no link, outside the confession, between the injury and the accused who admits having inflicted it. But where the crime involves no tangible corpus delicti, we have said that 'the corroborative evidence must implicate the accused in order to show that a crime has been committed.' [Smith v. United States] 348 U.S. , at 154 [75 S.Ct. 194, 99 L.Ed. 192]. Finally, we have said that one uncorroborated admission by the accused does not, standing alone, corroborate an unverified confession. United States v. Calderon, 348 U.S. 160, 165 [75 S.Ct. 186, 99 L.Ed. 202].

Proof of injury and criminality, then, are sufficient corroborative elements for crimes which have tangible corpus delicti. Wong Sun v. United States, supra, 371 U.S. at 489 n. 15, 83 S.Ct. 407. Accord, United States v. Stabler, 490 F.2d 345 (8th Cir. 1974). Only where there is no tangible evidence of the crime is it necessary to personalize the corroboration and 'implicate the accused.' Wong Sun v. United States, supra, 371 U.S. at 489 n. 15, 83 S.Ct. 407.

In Gay v. United States, supra, upon which Delay relies, the essential element of intent to defraud depended entirely on an extrajudicial admission of the defendant. However, since fraud is criminal only because of a state of mind, it involves no tangible corpus delicti. Under Wong Sun it was therefore necessary that the corroborative evidence implicate the accused. This could have been accomplished only by demonstrating Gay's state of mind through independent evidence. Gay v. United States, supra, 408 F.2d at 930. However, Gay is inapposite to the crime here. Here there is a tangible corpus delicti, and the proof of the dead bodies with gunshots in their temples sufficiently established the injury specified in the crime and evidence of somebody's criminality. In other words, Delay's extrajudicial admissions were sufficiently corroborated without any independent proof of his state of mind.

However, even assuming independent proof of intent was necessary to corroborate the confession of homicide, which it is not, such proof is present on the facts of this case. Intent is provable by indirect or circumstantial evidence. United States v. Lawson, 483 F.2d 535, 537 (8th Cir. 1973), cert. denied, 414 U.S. 1133, 94 S.Ct. 874, 38 L.Ed.2d 757 (1974); Gay v. United States, supra, 408 F.2d at 929 (and cases cited therein). Here Delay announced his plan to perpetrate the bank robbery. He mentioned to at least one of his associates the names of one of the victims. He discussed the electronic explosive device. He purchased a pistol, later determined to be the murder weapon. The bodies were discovered within a few hours of the actual withdrawal of the funds. And the execution style of the shootings indicated deliberate acts. These factors are sufficient corroborative circumstantial evidence of specific intent to commit murder in an attempt to avoid apprehension for the crime. They negate an argument that the killings may have been in self-defense or that they were committed in haste or anger.

The confession, thus corroborated and if otherwise admissible, may permissibly have been cumulated with other evidence of intent discussed above. The whole of that evidence was sufficient for the jury to find intent. Thus, it was not error for the court to overrule Delay's motion for acquittal on this ground.

Admissibility of Confession

Delay next asserts that the extrajudicial admissions were themselves improperly admitted. These statements were made on three different occasions to a newspaper man, Royce, who was a part-time, unpaid, deputy sheriff, a former St. Louis policeman, and foreman of the coroner's jury. Delay argues that Royce must be considered a law enforcement officer to which the dictates of Miranda are applicable. Royce's noncompliance with the dictates of Miranda, he maintains, renders those statements inadmissible.

However, a close examination of the record vitiates this argument. At a suppression hearing prior to trial, Royce and the sheriff explained the nature of Royce's duties as a deputy sheriff. Royce was approximately one of thirty unpaid volunteers in a sparsely populated rural county. He became a deputy sheriff when the instant case arose because at that time a press secretary was needed. The only time he ever worked as a deputy sheriff was when he...