U.S.A v. Smith

• Decision Date: 03 June 2010
• Docket Number: No. 09-2040.,09-2040.
• Citation: 606 F.3d 1270
• Parties: UNITED STATES of America, Plaintiff-Appellee,v.Lehman SMITH, Defendant-Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

606 F.3d 1270

UNITED STATES of America, Plaintiff-Appellee,v.Lehman SMITH, Defendant-Appellant.

No. 09-2040.

United States Court of Appeals, Tenth Circuit.

June 3, 2010.

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Mark D. Standridge (Mark D. Jarmie with him on the briefs), Jarmie & Associates, Albuquerque, NM, for Appellant.

Laura Fashing, Assistant United States Attorney (Gregory J. Fouratt, United States Attorney, with her on the brief) Office of the United States Attorney, Albuquerque, NM, for Appellee.

Before: BRISCOE, Chief Judge, McWILLIAMS, Senior Circuit Judge, and TYMKOVICH, Circuit Judge.

TYMKOVICH, Circuit Judge.

A jury convicted Lehman Smith of sexual assault, and he was sentenced to 60 months' imprisonment and 36 months of supervised release. Smith appeals his conviction and sentence, raising four pretrial and trial issues: the district court erred by (1) refusing to suppress his confession, (2) admitting hearsay evidence under the excited-utterance exception, (3) finding that evidence sufficient to sustain his conviction was introduced, and (4) imposing special conditions of supervised release restricting his contact with minors and the disabled.

Our jurisdiction arises under 18 U.S.C. §§ 1291 and 3742. We AFFIRM the rulings of the district court.

I. Background¹

On March 24, 2007, Smith, an Indian, and the victim, “Jane Doe,” both attended a party at a hogan ² located in the Navajo Nation. They and other attendees at the party consumed beer, and some used drugs. The party broke up after midnight. While everyone else left the hogan, Smith and Jane Doe remained. Jane Doe fell asleep on a couch at around 2:00 a.m.

Jane Doe awoke to find Smith having sex with her. She pushed Smith off, confronted him, and fled the hogan. She sought assistance at a neighbor's trailer, claiming she had been raped. She then called the police. Jane Doe was taken to an emergency room. DNA samples taken by an examining doctor were later matched to Smith.

That same day, Smith was arrested on charges based on the Navajo tribal code. He was taken to a local jail, where he was advised of his rights and questioned by law enforcement officials, including a member of the FBI. During the interview, Smith confessed to sexually assaulting Jane Doe. He then provided a written statement of confession.

After additional investigation, a federal arrest warrant was obtained for Smith on March 27, 2007. In accordance with that warrant, Smith was transferred into federal custody.

Ultimately, a jury convicted Smith of knowingly engaging and attempting to engage in a sexual act with a person incapable of apprising the nature of the conduct and of communicating unwillingness to engage in the sexual act, in Indian Country, in violation of 18 U.S.C. §§ 1153, 2242(2), and 2246(2)(A). The district court sentenced Smith to 60 months' imprisonment and 36 months of supervised release. The district court also established special conditions of supervised release, limiting Smith's ability to have contact with children and disabled adults.

II. Discussion

Smith argues the district court made four errors. First, he contends the district court should have suppressed his confession because (a) it was not made knowingly and voluntarily, and (b) he was not promptly taken before a federal magistrate judge. Second, he asserts that the district court improperly allowed Jane Doe's statement to the neighbor-“Help me, help me. He raped me.”-to be admitted under the excited-utterance exception to the hearsay rule. Third, he challenges the district court's conclusion that evidence sufficient to sustain his conviction was presented at trial. Finally, Smith seeks reversal of the special conditions of supervised release relating to children and disabled adults that the district court imposed.

We address each contention in turn.

A. The Confession

When reviewing the district court's denial of a motion to suppress, we review legal conclusions de novo and findings of fact for clear error. See United States v. Grimmett, 439 F.3d 1263, 1268 (10th Cir.2006). We view the evidence in the light most favorable to the government. See id.

1. Voluntariness

Smith first argues his confession should have been suppressed because it was not made knowingly and voluntarily. We do not agree.

According to testimony at the suppression hearing, Smith drank a substantial amount of alcohol, smoked marijuana, and ingested cocaine on Saturday, March 24, 2007. He was last seen consuming those substances sometime before 3:00 a.m. on Sunday, March 25, 2007.

On March 25, at approximately 7:30 a.m., Officer Anthony Ashley of the Navajo Nation Department of Public Safety responded to Smith's residence. Officer Ashley had been told that Smith sexually assaulted Jane Doe and was following up on the victim's call to tribal police. After Smith's grandmother let him into the house, Officer Ashley found Smith asleep and smelling of alcohol. Officer Ashley woke Smith, introduced himself, and arrested Smith on tribal sexual assault charges. During this time, Officer Ashley noticed that Smith spoke to his grandmother clearly and coherently.

Smith was subsequently taken to a local jail. Shortly after 11:00 a.m. that morning, FBI Special Agent Rob Sayegh and Navajo Nation Criminal Investigator Rosina Ford interviewed Smith. The interview took place in a room roughly eight feet by eight feet in size. Smith was not handcuffed during the interview. At the time the interview was conducted, Smith did not appear to be intoxicated and he did not smell of alcohol. In response to some preliminary questions, Smith indicated that he was sober and able to talk, he had been educated through the tenth grade, and he could understand the English language.

At 11:29 a.m., Agent Sayegh read Smith his Miranda rights and provided him an advice of rights form to read and sign. Smith signed the form at 11:31 a.m. After signing the form, Smith stated he was willing to answer questions without a lawyer being present.

Throughout the interview, Smith provided clear, responsive, and specific answers to the interviewers' questions. Smith proceeded to confess that he had sexually assaulted the victim. Thereafter, prompted by Agent Sayegh, Smith agreed to make a written statement. Agent Sayegh provided Smith a form upon which he wrote: “What I did was not me. I was not thinking. I was [d]runk. I feel sick of [myself] because of what I did. I had sex with her. I pulled down her pants.... I had sex with her for 30 min[utes,] while she was [asleep].” Aple. Br., Ex. 2. Smith signed the form, attesting to both the statement he wrote on it and its pre-printed contents. The pre-printed portions of the form acknowledge that the written statement it contains is true and correct, and was made by Smith after he was advised of his constitutional rights and without pressure or coercion.

The interview ended on March 25 at 12:39 p.m.

Smith moved the district court to suppress his written statement, claiming that he was intoxicated at the time he was apprised of his constitutional rights and that Agent Sayegh coerced his confession by instructing him on what to include in his statement and with promises of leniency. The district court refused to suppress Smith's confession, concluding he knowingly and voluntarily waived his Miranda rights and voluntarily made his written statement while sober and coherent. In particular, the district court did not credit witness testimony that Smith consumed at least 20 cans of beer during the party.

A waiver of Miranda rights must be made voluntarily, knowingly, and intelligently. See Smith v. Mullin, 379 F.3d 919, 932 (10th Cir.2004). Our inquiry into a waiver's validity has two dimensions:

First, the relinquishment of the right must have been voluntary in the sense that it was the product of a free and deliberate choice rather than intimidation, coercion, or deception. Second, the waiver must have been made with a full awareness of both the nature of the right being abandoned and the consequences of the decision to abandon it. Only if the totality of the circumstances surrounding the interrogation reveal both an uncoerced choice and the requisite level of comprehension may a court properly conclude that the Miranda rights have been waived.

Id. (quoting Moran v. Burbine, 475 U.S. 412, 421, 106 S.Ct. 1135, 89 L.Ed.2d 410 (1986)). In determining whether rights were voluntarily waived, we consider: the suspect's age, intelligence, and education; whether the suspect was informed of his or her rights; the length and nature of the suspect's detention and interrogation; and the use or threat of physical force against the suspect. See

Smith, 379 F.3d at 934; United States v. Minjares-Alvarez, 264 F.3d 980, 985 (10th Cir.2001).

The same factors are assessed in determining whether a confession was voluntarily given. See Smith, 379 F.3d at 934; Minjares-Alvarez, 264 F.3d at 984-85. In addition, identifying coercive police activity is a necessary predicate to finding that a confession is not voluntary. See Smith, 379 F.3d at 934. Importantly, “[t]he state of intoxication does not automatically render a statement involuntary.” United States v. Muniz, 1 F.3d 1018, 1022 (10th Cir.1993). Rather, the test is “whether a [suspect's] will was overborne by the circumstances surrounding the giving of a confession.” Dickerson v. United States, 530 U.S. 428, 434, 120 S.Ct. 2326, 147 L.Ed.2d 405 (2000) (internal quotation marks omitted).

The district court determined that both Smith's waiver of his constitutional rights and confession were valid, and we see no clear error in its finding concerning Smith's mental state. Nothing suggests that Smith was intoxicated, or otherwise incapable of sufficient comprehension, when Agent Sayegh advised him of his Miranda rights or when he signed the form acknowledging that he had been apprised of, understood, and waived those rights. At the time Smith waived his...