U.S. v. Brunson, 75-4390

• Citation: 549 F.2d 348
• Decision Date: 24 March 1977
• Docket Number: No. 75-4390,75-4390
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Thomas J. BRUNSON, Defendant-Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)

Page 348

549 F.2d 348

UNITED STATES of America, Plaintiff-Appellee, v. Thomas J. BRUNSON, Defendant-Appellant.

No. 75-4390.

United States Court of Appeals, Fifth Circuit.

March 24, 1977.

James E. Taylor, Jr., Edward A. Nagel (Court-appointed), Orlando, Fla., for defendant-appellant.

John L. Briggs, U. S. Atty., Jacksonville, Fla., Kendell W. Wherry, Asst. U. S. Atty., Orlando, Fla., for plaintiff-appellee.

Appeal from the United States District Court for the Middle District of Florida.

Before MORGAN and GEE, Circuit Judges, and HUNTER, ^* District Judge.

LEWIS R. MORGAN, Circuit Judge:

Thomas J. Brunson appeals convictions for his part in the armed robbery of the Gotha, Florida post office and the murder of its postmistress. ¹ He argues that the district court erred by (1) refusing to suppress a statement and fingerprints taken from him by postal inspectors; (2) admitting evidence of his participation in another armed robbery committed four days before the post office robbery; and (3) refusing to direct a verdict of acquittal. We affirm.

I. FACTS.

A little before 3:30 p. m. on July 21, 1975 Marion Bush, a resident of the small rural community of Gotha, was watching television at home when she heard a loud noise from the vicinity of the nearby post office. She looked out her window and saw two black men emerge from the post office and drive off in a light colored Cadillac. She rushed to the post office and found that the postmistress, Marion Loraine Smith, had been shot to death.

Bush telephoned the Orange County sheriff's office, which sent deputies to secure the post office. United States postal inspectors and sheriff's deputies immediately began an intensive investigation. Although no one had witnessed the killing, a number of Gotha residents reported seeing a car and men matching those described by Bush driving around Gotha on the day of the killing. Two people had seen one black man inside the post office and the Cadillac outside the post office minutes before the murder, but no one remembered the men's faces. A fingerprint expert lifted latent prints from the post office, and an audit revealed that $288.70 in cash was missing.

The first break in the case came at about 7:00 p. m. on July 30, when fingerprints lifted from the post office counter were found to match known prints of a Glen Herman. Investigators already had determined that a Glen Herman recently had bought a Cadillac similar to the one seen in Gotha on the 21st, and they now launched a concerted effort to find Herman, the Cadillac, and anyone who knew Herman.

During this effort the investigators came to believe that one of Herman's associates was an Aaron Brunson, whom the investigators believed also was called "Black Boy." ² Aaron Brunson was thought to live at a particular address in a poor neighborhood of Winter Garden, Florida, which is a few miles northwest of Gotha. At about 9:30 p. m. on the 30th four postal inspectors and a sheriff's deputy left the operational headquarters for the case, the 33rd Street Annex of the Orange County Sheriff's Department, and drove in two cars to the neighborhood where they believed Aaron Brunson lived. Their purpose, the investigators later testified, was to locate Aaron "Black Boy" Brunson for an interview as to Herman's whereabouts, to look for another, unnamed associate of Herman, and to keep an eye out for Herman's Cadillac. Record Vol. II at 206-07, 210, 241, 245-56, 253, 255-56, 271-72, 279, 294, 303-04. Five investigators went because of the possibility they might run across Herman himself, id. at 245, 364-65, and because the neighborhood was known to be a rough one, id. at 268-70, 277-78, 304, 366.

What transpired next formed the crux of the suppression issue and was explored in great detail at the pre-trial suppression hearing. Four of the five investigators who went to Winter Garden that night testified. They agreed that Postal Inspector Bowers and Deputy Mack, dressed in civilian clothes and driving an unmarked car, parked in front of the house where they thought Aaron Brunson lived. Bowers and Mack knocked on the front door, identified themselves to the person who answered, and said they would like to see "Black Boy" Brunson. The person who answered shouted up to the second floor of the house to "Black Boy." A man appeared on the second story porch and asked who wanted to see him. Mack shouted up that he was from the sheriff's office.

"Black Boy" came down the back stairs of the house and up a side alley to the front, where Bowers and Mack again identified themselves. They told "Black Boy" they would like to talk to him, and the three walked to Mack and Bowers' car. There they were joined by Postal Inspectors Broadwater, Post, and Miller, also in plain clothes, who had been waiting near the side or back of the house.

The investigators told Brunson that they would like to talk to him at their headquarters. Inspector Broadwater testified that he told Brunson, "I want you to do it voluntarily. You are not under arrest," and that Brunson replied, "Certainly." Record Vol. II at 238. The investigators also told Brunson that they would bring him home after his interview. Id. at 273-74. They asked whether Brunson would like to tell his family where he was going, and Deputy Mack told the family where Brunson was going and that the investigators would bring him home after his interview. Id. at 223, 273. The investigators described Brunson's attitude toward going with them as "most cooperative," id. at 224 (Inspector Bowers), "very cooperative," id. at 239 (Inspector Broadwater), 267 (Deputy Mack), and "completely cooperative," id. at 291 (Inspector Post).

The investigators also were unanimous in testifying that none of them told Brunson he was under arrest or so much as touched him, let alone frisked, searched, or handcuffed him. Id. at 223, 225, 238-39, 267-68, 273, 290-91, 292. Although the investigators were armed, their weapons were not visible. Id. at 248-49, 267, 291, 301. They made it clear at the hearing that they had no intent to arrest or detain Brunson, because at that time they knew no more than that Aaron or "Black Boy" Brunson knew Herman. Id. at 239, 242, 292. ³ They also explained that they preferred to conduct the interview at their headquarters because a crowd was milling around the house, id. at 229, 236-38, because the house itself appeared to be crowded, id. at 229, and because they had pictures of Herman at headquarters, id. at 237. They stated that they would have interviewed Brunson at home if he had asked them to, id. at 300, and that if Brunson had asked to be let out of the car or taken home during the ride to headquarters, they would have complied, id. at 239, 293. During the investigation at least one other person had been interviewed at the operational headquarters rather than at his home or place of business. Id. at 215.

Brunson rode to the 33rd Street Annex with Broadwater, Post and Miller. On the way there Broadwater asked Brunson if his first name was Aaron and learned, for the first time, that "Black Boy" Brunson was not Aaron Brunson, but rather his brother Thomas Brunson. Id. at 240-41. Broadwater also made some "small talk," asking what Brunson did for a living and learning that he picked oranges, id. at 240, but no other questioning took place on the ride to the Annex.

At about 10:15 p. m. they arrived at the Annex and Brunson was shown into the office where the interview was to take place. Detective Nazarchuk and Postal Inspector Weaver came in and introduced themselves to Brunson. They told him they were investigating the Gotha murder and read him the Miranda rights, which Brunson said he understood. ⁴ Brunson signed a card waiving his right to have an attorney present during the interview. Id. at 312-14.

After some preliminary confusion the officers determined that Brunson did know Glen Herman, but only by the name "Willie." Nazarchuk began questioning Brunson about his association with Herman. Brunson said that he had ridden with Herman in Herman's Cadillac on occasion. When Nazarchuk asked whether Brunson had ridden with Herman on July 21st, Brunson first gave inconsistent accounts of his activities that day. Under further questioning he said he wanted to tell the investigators the truth. Id. at 316, 334-35. They took a short break, id. at 318, 360-61, and Brunson then told the investigators that he had been with Herman inside the Gotha post office when Smith was killed, but that Herman was the one who killed her and that he, Brunson, had not known beforehand that Herman was going to rob the post office or kill the postmistress. ⁵

After exploring the details of Brunson's story, the investigators asked whether he would allow them to tape record his version. He agreed, and at 12:20 a. m. the investigators started the recording machine, read Brunson his Miranda rights again, and again elicited the details from him. ⁶ The officers then formally arrested Brunson for first degree murder and robbery of the post office and took his fingerprints. These prints later proved to match previously unidentified latent prints lifted from the counter of the Gotha post office. The investigators testified that at no time did either of them make any threats or promises to Brunson, id. at 311, 361-62, 368, and that he seemed willing to relate his story, id. at 314, 315, 321-22, 356.

Brunson himself also testified at the suppression hearing. His testimony, in the main, substantiated that of the investigating officers. Although he said he had thought he was under arrest at his home and that he did not know he did not have to go to the Annex with the officers, Record Vol. I at 164, Brunson admitted that they did not tell him he was under arrest, id. at 175, or frisk him, id. at 174-75, or handcuff him, id. at 175, or show weapons to him, id. at 174, 176, and that upon their request he had agreed to go with them, id. at 176. He also remembered telling...