U.S. v. Fritz, 77-1027

• Citation: 580 F.2d 370
• Decision Date: 03 July 1978
• Docket Number: No. 77-1027,77-1027
• Parties: UNITED STATES of America, Appellee, v. Robert Earl FRITZ, Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (10th Circuit)

Page 370

580 F.2d 370

UNITED STATES of America, Appellee, v. Robert Earl FRITZ, Appellant.

No. 77-1027.

United States Court of Appeals,

Tenth Circuit.

Submitted En Banc May 9, 1978.

Decided July 3, 1978.

Douglas B. Comer, Asst. U. S. Atty., Topeka, Kan., and Jerome Feit, Deputy Chief, App. Section, Dept. of Justice, Crim. Div., Washington, D. C., for appellee.

David J. Phillips, Asst. Federal Public Defender, Kansas City, Kan., for appellant.

Before SETH, Chief Judge, and HOLLOWAY, McWILLIAMS, BARRETT, DOYLE, McKAY and LOGAN, Circuit Judges.

BARRETT, Circuit Judge.

Robert Earl Fritz (Fritz) appeals from a jury verdict of guilty and subsequent sentencing following trial on a two-count indictment charging that on July 27, 1976, he (1) wilfully and knowingly transported one Rick Lee Simpson in interstate commerce from Kansas to Iowa after having kidnapped him for ransom, in violation of 18 U.S.C.A. § 1201, and (2) wilfully and knowingly transported in interstate commerce a certain 1964 Ford pickup truck knowing it was stolen, in violation of 18 U.S.C.A. § 2312.

We will summarize the evidence, keeping in mind that following a conviction the evidence on appeal must be reviewed in the light most favorable to the Government together with all reasonable inferences to be drawn therefrom. United States v. Crocker, 510 F.2d 1129 (10th Cir. 1975); United States v. Yates, 470 F.2d 968 (10th Cir. 1972).

On or about July 27, 1976, Fritz, then a prisoner at the Kansas State Penitentiary, was transferred to a hospital in Leavenworth, Kansas, because of an apparent illness. One Riggs, an employee of the penitentiary, had been assigned to guard Fritz while Fritz was in the hospital. While standing guard outside of Fritz's hospital room about 1:00 o'clock A.M. on July 27, 1976, Fritz overpowered Riggs, ran from the room and escaped.

One Rick Lee Simpson, age 16, testified that about 7:00 P.M. on July 27, 1976, he had gone to a fishing pond in Leavenworth after parking his pickup truck nearby. When he returned to his vehicle he found Fritz seated therein on the passenger side. Fritz ordered Rick to get in and he directed that Rick drive onto Highway 73. Rick was "scared" because he saw that Fritz had in his possession a hay bale hook, an axe and a baseball bat. Furthermore, Rick was concerned that Fritz had a gun under the front seat. Rick was afraid. He did not know whether to run or do as directed. He got into the truck and drove onto Highway 73 where Fritz told him to drive north on Highway 73. Fritz ordered Rick to stop in Atchison, Kansas, and to pick up a coke for him at a Dairy Queen. Rick obeyed. When asked on direct examination why he did not attempt to escape at that time, Rick responded that he did not know how the people in the Dairy Queen would respond if he told them he had a person in his truck making him drive him "some places" and he was fearful of his life because he still did not know whether Fritz had a gun and whether ". . . he would have shot me just then or not." (R., Vol. II, at 23.) Rick proceeded to transport Fritz, as directed, for a period in excess of two hours until they arrived in Nebraska City, Nebraska, where they stopped to get gasoline. Fritz then admonished Rick not to "try anything." (R., Vol. II, at 24.) They then traveled to Sidney, Iowa, as ordered by Fritz, where Fritz departed from the truck on a side road of the highway after taking Rick's shoes and socks. He also departed with two baseball batting gloves and a "sawed-off" baseball bat, which were identified by Rick in open court together with his tennis shoes and socks, all of which were admitted in evidence. Rick testified that during the end of the trip Fritz told him that he had escaped from the hospital in Lansing; that he "belonged" in the Kansas State Penitentiary; that his name was "Bob"; that he had "faked" a heart attack to get into the hospital in Leavenworth; that he had a handcuff key underneath his false teeth (which he displayed to Rick) which he had been using for "the past two years to get out of all the prisons." Rick tried to contact police while attempting to drive back to Leavenworth late that night. He finally related the events to a highway patrolman in St. Joseph, Missouri. (R., Vol. II, at 29-32.)

Rick identified Fritz in open court as the person who forced him to undertake the involuntary journey. On cross-examination, Rick testified that he was in the eleventh grade at Leavenworth High School where he played basketball; that he stood 6 feet 5 inches and weighed 175 pounds; and that he believed he was in good physical shape. (R., Vol. II, at 33, 34.) Rick acknowledged that Fritz did not use any threatening language directed toward him. Even so, Fritz shook a hay bale hook at Rick when he first ordered him to drive north, and later Fritz remarked to Rick that if he had not "gotten in the truck he would have killed me with that hay bale hook." (R., Vol. II, at 44.) Rick stated that he did not relate his predicament to anyone at the Dairy Queen (which he entered twice) because he did not feel that anyone would believe him. Furthermore, Rick did not see a second door inside the Dairy Queen. In any event, Rick was fearful that Fritz had a gun in his possession. (R., Vol. II, at 45.) Rick said that he asked Fritz two or three times whether Fritz intended to hurt him and that Fritz said he did not. (R., Vol. II, at 49.) The 16-year old Rick testified that he was "scared" and that even after Fritz left the pickup truck in Sidney, Iowa, Rick wanted to find help. (R., Vol. II, at 57.)

George C. Scott, a Missouri State Highway Patrolman, testified that he had been informed by radio about a red pickup truck whose driver had been "robbed" and that he stopped a truck meeting that description being driven by Rick about 5:38 A.M. on July 28, 1976, north of St. Joseph, Missouri. (R., Vol. II, at 61-64.) Rick told Scott that he had been kidnapped, forced to take a man to Iowa and that he had been robbed. (R., Vol. II, at 64.) Scott observed that Rick was nervous and that he appeared frightened. (R., Vol. II, at 64.)

Steve MacDonald, Chief of Police, Sidney, Iowa, testified that he arrested Fritz in Sidney during the morning of July 28, 1976. He identified Fritz in the courtroom, together with the exhibits representing the gloves, the tennis shoes, the pair of baseball gloves and the handcuff key. After another officer arrived at the scene where Chief MacDonald had stopped Fritz, MacDonald testified that ". . . we questioned him (Fritz) quite a bit out there and Officer Brumbaugh had heard of the escape of a Kansas inmate on AM Radio WOW, Omaha. He remembered the Fritz case. He is from Nebraska and he remembered when this Robert Fritz had an earlier spree . . . ." (R., Vol. II, at 76.) Upon defense objection, the trial court admonished the jury to disregard the statement about the escape and spree. Fritz's motion for mistrial was then overruled. (R., Vol. II, at 77.)

MacDonald stated that a teletype communication from Kansas authorities was received describing one Robert Earl Fritz, an escapee from Kansas, and that Fritz met the detailed description. Fritz was then taken to the Fremont County Jail in Sidney, Iowa. It was there that Fritz faked a heart attack. MacDonald testified that when Fritz was being returned to jail following the ambulance trip and medical examination, he remarked to MacDonald that "I thought you guys were a bunch of softies and I could put something over on you" and that "I don't have nothing to lose . . . I have been in jail most of my life." (R., Vol. II, at 83-85.) The trial court sustained defense objection to this testimony and admonished the jury to disregard it. The trial court, however, denied the defense motion for mistrial.

James C. Brumbaugh, State of Iowa Highway Patrolman, corroborated much of MacDonald's testimony.

Dr. Walter G. Nelson, who was called to the Sidney, Iowa, County Jail after Fritz complained of chest pains on July 28, 1976, testified that he found Fritz, whom he identified in open court, "complaining of pain and was making all kinds of motions with his body, folding his body up . . . holding his chest and folding over." He examined him for a possible heart attack. Dr. Nelson's examination did not indicate that Fritz was suffering heart problems but, out of precaution, he administered a shot of Arlidin to improve his heart rate. The purpose of the drug, in addition to improving the heart rate, is that of stimulating the blood supply to the brain. Dr. Nelson stated that this would also stimulate the brain and cause the patient to think better because more blood would flow to the brain.

Dr. Kenneth D. Rodabaugh, of Tabor, Iowa, testified that he examined an electrocardiogram taken of Fritz at Grape Community Hospital. The doctor remembered Fritz by his fictitious name of John Staggerwald. He found Fritz's blood rate and rhythm normal and regular, lungs clear and reflexes normal with only dilated pupils, probably due to fear or anxiety. He confirmed Dr. Nelson's opinion concerning the effect of the shot of Arlidin administered Fritz.

Jerald W. Gallentine, Special Agent with the FBI, testified that on July 28, 1976, he left his Omaha, Nebraska, office and traveled to Sidney, Iowa, after notification that an escapee from Leavenworth had been apprehended in Sidney. He and Special Agent James P. Malone proceeded to the Grape Community Hospital where they interviewed Fritz after identifying themselves and after tendering Fritz a printed "Miranda " statement of his rights. Fritz declined to physically take the card in his hands and to read it. Thereupon, Agent Gallentine read the rights to Fritz, to-wit: "Before we ask you any questions, you must understand your rights. You have the right to remain silent. Anything you say can be used against you in court. You have the right to talk to a lawyer for advice before we ask you any questions and to have him with you...