U.S. v. Gay

• Decision Date: 08 August 1975
• Docket Number: No. 75-1133,75-1133
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Steven Michael GAY, Defendant-Appellant.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 429

522 F.2d 429

UNITED STATES of America, Plaintiff-Appellee, v. Steven Michael GAY, Defendant-Appellant.

No. 75-1133.

United States Court of Appeals,

Sixth Circuit.

Aug. 8, 1975.

Richard J. Howard, Howard & Howard (Court appointed CJA), Kalamazoo, Mich., for defendant-appellant.

Frank S. Spies, U. S. Atty., Grand Rapids, Mich., for plaintiff-appellee.

Before MILLER and LIVELY, Circuit Judges, and FEIKENS, ^* District Judge.

LIVELY, Circuit Judge.

The issues before the court on this appeal do not require a lengthy recitation of facts. The appellant was convicted in a jury trial of an armed bank robbery in which a bank employee was shot to death. Gay and Donald Lee Gerlofs were jointly indicted and were tried together. Gerlofs has not appealed his conviction.

Appellant contends that the FBI agents who obtained confessions from him and Gerlofs failed to observe the requirements of Miranda v. Arizona,384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), and that neither confession should have been admitted at their trial. The district court conducted an extensive hearing on motions to suppress, and at the conclusion thereof admitted the confessions, holding that they were "knowingly made with the full understanding of the right to remain silent and the right to an attorney, and with an understanding of the consequence of the waiver." (Transcript of hearing on motion to suppress, p. 270). The provisions of 18 U.S.C. § 3501 were fully complied with in making this determination and instructing the jury as to the weight to be given the confessions. The appellant contends on appeal that the confessions were inadmissible because the Fifth Amendment right of both defendants to remain silent was infringed by repeated interrogations.

Gerlofs and Gay were arrested separately. Gerlofs was immediately advised of his rights and denied at first that he knew where Gay could be found. After several requests for this information from the officers, Gerlofs told them that Gay was visiting a sick relative at a hospital. Several of the officers left to look for Gay and one FBI agent stayed with Gerlofs. After Gerlofs had again been given a statement of his rights he began to talk about his association with Gay and eventually admitted his participation in the bank robbery. He was then taken to the local courthouse where he signed a written waiver of rights and a detailed confession, both of which were admitted at the trial.

Following his later arrest, Gay refused to respond to questioning on three separate occasions before confessing. Each time he was given a statement of his rights, and questioning was stopped when he denied participation in the robbery. During the second interview Gay said he wanted to cooperate and signed a consent to search his car. The third interview took place just prior to Gay's appearance before a federal magistrate. He signed a waiver of rights form and, according to the FBI agent who questioned him, he confessed orally. Gay denied signing a form or making a statement at that time. Nevertheless, after his hearing before the magistrate Gay sent for the same FBI agent. At that time he signed another waiver and a written confession. Both waivers and the confession were admitted in evidence.

The district court correctly applied the law as set forth in Hill v. Whealon, 490 F.2d 629 (6th Cir. 1974). Both of the suspects were given separate, adequate warnings before each period of questioning. Furthermore, the questioning was not pressed in the face of denials, and the evidence supports the conclusion that neither suspect ever refused absolutely to discuss the matter or requested an attorney. The record indicates that both understood their rights and were trying to decide what course to follow during the relatively brief time between their arrests and confessions. Shortly before Gay's confession was received the agents had "a reasonable basis for inferring that the suspect ha(d) voluntarily changed his mind." United States v. Collins, 462 F.2d 792, 802 (2d Cir.) (en banc), Cert. denied, 409 U.S. 988, 93 S.Ct. 343, 34 L.Ed.2d 254 (1972). The entire record supports the conclusion that the prosecution sustained its "heavy burden" of showing that the confessions were voluntarily made and that the right of appellant and his co-defendant to remain silent was not violated. Miranda v. Arizona, supra, 384 U.S. at 475, 86 S.Ct. 1602; United States v. Rimka, 512 F.2d 425 (6th Cir. 1975); Hill v. Whealon, supra, at 635.

Appellant pled insanity as his defense and in his opening statement counsel for Gay admitted many of the facts surrounding the fatal robbery. He alleges prejudice from the denial by the district court of his motion for a separate trial from that of his accomplice. He claims particularly that the introduction of Gerlofs' confession harmed his case. The court instructed the jury that it could consider each confession only in connection with the charges against the person who gave it. Gay's name was deleted from Gerlofs' confession and "my friend" was substituted. The jury was not permitted to see the written confessions or to take them to the jury room. The appellant has not specified the prejudice which he claims resulted from the joint trial. The Bruton rule (Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968)) was not violated in this case, and the district court did not abuse the discretion granted it by Rule 14, Fed.R.Crim.P., in denying Gay's motion for a severance. United States v. Dye, 508 F.2d 1226, 1236 (6th Cir. 1974), Cert. denied, --- U.S. ---, 95 S.Ct. 1395, 43 L.Ed.2d 653 (1975); United States v. Franks, 511 F.2d 25 (6th Cir. 1975), Cert. denied, --- U.S. ---, 95 S.Ct. 2656, 45 L.Ed.2d 693 (1975).

Appellant's claim that his conviction should be reversed because of the court's refusal to excuse two jurors for cause is without merit. These jurors were aware of some of the pretrial publicity concerning the bank robbery. However, in separate questioning the trial judge determined that they had not formed opinions about the case, and questioning by counsel did not disclose any predisposition toward a finding of guilt. In the trial of a case involving a crime which attracts the attention of the press it is inevitable that some jurors will have some knowledge of the facts. If a juror can lay aside any preconceptions about the case and try it solely on the evidence presented in court, it is not error to fail to dismiss such a juror for cause. Murphy v. Florida, --- U.S. ---, 95 S.Ct. 2031, 44 L.Ed.2d 589 (1975); Irvin v. Dowd, 366 U.S. 717, 722-23, 81 S.Ct. 1639, 6 L.Ed.2d 751 (1961); Holt v. United States, 218 U.S. 245, 248, 31 S.Ct. 2, 54 L.Ed. 1021 (1910).

Appellant asserts two related grounds for reversal in connection with the treatment of his insanity defense. He argues that he was entitled to a directed verdict of acquittal because the only competent evidence on this issue was to the effect that he was not legally sane at the time the crime was committed. This is based on his contention that the psychiatrists who testified for the government applied the wrong tests of legal insanity and their evidence should have been stricken. We disagree. While it is true that the prosecution's medical witnesses gave answers on cross-examination which indicated disagreement with theories held by other psychiatrists, and some confusion about the criteria to be applied, these were matters to be considered by the jury in determining which testimony to accept. The fact remains that on direct examination both witnesses were asked if appellant was suffering from any mental illness, defect or disorder which would render him incapable of conforming his conduct to the requirements of the law. Both answered that appellant did not have such a condition, though each made a diagnosis of "antisocial personality."

In United States v. Smith, 404 F.2d 720 (6th Cir. 1968), this court adopted, with one exception, the ALI Model Penal Code test of criminal responsibility:

"A person is not responsible for criminal conduct if at the time of such conduct as a result of mental disease or defect he lacks substantial capacity either to appreciate the criminality (wrongfulness) of his conduct or to conform his conduct to the requirements of the law." Model Penal Code § 4.01 (Official Draft, 1962). 404 F.2d p. 726.

The court did not adopt the following definition which was accepted by the ALI:

As used in this Article, the terms "mental disease or defect" do not include any abnormality manifested only by repeated criminal or otherwise anti-social conduct. Model Penal Code § 4.01(2) (Official Draft, 1962).

It is appellant's position that in rejecting the above language this court intended to imply that the condition variously described as "antisocial personality" and "psychopathic personality" must, as a matter of law, be included in the legal definition of insanity. Thus he contends that the district court committed error in charging the jury that the abnormality referred to as psychopathic personality or antisocial personality is a condition "which may or may not be included within the definition of mental disease or defect." It is contended that the jury should have been instructed that psychopathic or antisocial personality is a mental illness, leaving for decision only whether this condition rendered appellant substantially incapable of conforming his conduct to the requirements of the law. In refusing to adopt language which excludes an abnormality manifested Only by antisocial conduct from the definition of mental illness, this court did not hold that every person diagnosed as psychopathic or antisocial personality is, as a matter of law, suffering from a mental illness or defect.

In Smith, we framed the questions to be submitted to juries required to determine the issue of legal sanity in criminal cases. The District Judge in the present case submitted the required questions, the...