U.S. v. Hackley

• Decision Date: 17 July 1980
• Docket Number: No. 79-1531,79-1531
• Citation: 204 U.S.App.D.C. 221,636 F.2d 493
• Parties: UNITED STATES of America, v. Wilbert E. HACKLEY, Appellant.
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 493

636 F.2d 493

204 U.S.App.D.C. 221

UNITED STATES of America, v. Wilbert E. HACKLEY, Appellant.

No. 79-1531.

United States Court of Appeals District of Columbia Circuit.

Argued Jan. 9, 1980.

Decided July 17, 1980.

Appeal from the United States District Court for the District of Columbia. (D.C. Criminal 78-604).

Dennis M. O'Keefe, Washington, D. C., for appellant.

Richard C. Bicki, Washington, D. C., a member of the bar of the Supreme Court of Rhode Island, pro hac vice, by special leave of Court, with whom Carl S. Rauh, U. S. Atty. ^* and John A. Terry, Asst. U. S. Atty., Washington, D. C., were on brief, for appellee.

Before TAMM and MacKINNON, Circuit Judges, and OBERDORFER ^**, United States District Judge for the District of Columbia.

Opinion for the Court filed by Circuit Judge MacKINNON.

Dissenting opinion filed by Circuit Judge TAMM.

MacKINNON, Circuit Judge:

Hackley was found guilty of attempted bank robbery, ¹ 18 U.S.C. § 2113(a) in the District of Columbia on the basis of stipulated facts which had been produced by the Government in opposition to motions to suppress testimony and identification. On appeal appellant claims that the court erred in denying his pre-trial motions to suppress his confession and identification. We find that the motion to suppress was properly denied and affirm the conviction.

(1) The Attempted Robbery

Hackley attempted to rob the Jefferson Federal Savings and Loan Association by pointing a gun at Jean Garrity, one of its tellers. However, since she was behind bulletproof glass she refused to turn over any money and instead set off the alarms. She also alerted Linda Moore, another teller who worked next to her, and both of them had an excellent opportunity for two or three minutes to have an unobstructed view of Hackley from only a few feet away (Tr. 72) under good lighting conditions. When no money was forthcoming, Hackley left the Association but not before its surveillance camera had taken his picture.

(2) The Investigation

The attempted robbery occurred on August 18, 1978. Approximately 6 days later, on August 24th Special Agent Colvert of the Federal Bureau of Investigation showed an array of photographs to Garrity and Moore. Each witness selected the photograph of a man they thought had similar features but was definitely not the man who attempted the robbery (Tr. 55, 57). After further investigation by the authorities, both witnesses were shown a second group of photographs. The inclusion of Hackley's photograph had been included in the second array following information from a confidential informant to the FBI that Hackley was involved in the robbery attempt. Miss Garrity picked out one photograph and stated she was "70 percent sure that it was a picture of the robber but would need to see him in person to be sure". (Tr. 51) Moore also was unable to make a positive identification from the photographs, but did select two photographs of men who looked the most like the robber. (Tr. 51-53) Miss Moore also indicated she would have to see the subjects in person to be able to make a positive identification. In both instances Garrity and Moore had separately selected the photograph of Hackley as possibly being the robber. Garrity and Moore later made positive identifications of Hackley at a lineup and in court.

(3) The Apprehension

On the basis of information from the confidential informant and other evidence, a warrant for Hackley's arrest was subsequently obtained. A group of four Special Agents of the FBI and two Metropolitan policemen ² executed the warrant at the home of Hackley's mother at approximately 6:30 a. m. on September 8, 1978. Hackley answered the door ³ and Special Agent Colvert identified himself and the others and informed appellant of the warrant and the charges. (Tr. 7) Colvert at that time orally advised Hackley of his Miranda rights. (Tr. 7-8, 17-18, 33-34, 40) Hackley replied that he understood them, ⁴ knew what he was being charged with, that he was out of town on the day in question (Tr. 8), and told his mother in effect: "Don't worry about it, Mom, I can take care of it." (Tr. 8) Detective Fontanna of the Metropolitan Police Department was one of those present during the arrest when Colvert warned Hackley of his rights (Tr. 33-34, 40-44) and when Hackley replied that he "understood" his rights. (Tr. 34)

(4) Interrogation

Following his arrest appellant was taken to the Washington field office of the Federal Bureau of Investigation. He was there given the printed form which sets forth his rights in the opinion in Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). Colvert requested Hackley to read it. (Tr. 10) After Hackley had done so in his presence he asked Hackley if he understood his rights, the nature of the charge and the fact that he was not required to sign the waiver. (Tr. 10) Hackley said, "Yes". (Tr. 10) Then at 6:49 a. m. he signed his name to the printed document which in large print stated: "Interrogation: Advice of Rights", "Your Rights", "Waiver of Rights". ⁵ He was then photographed and fingerprinted. (Tr. 10-11) Agent Colvert testified as to these events and those which followed:

After he (Hackley) signed the (Miranda ) form he was he stood up to be fingerprinted and photographed. The indication that he was willing to, at least talk to me, the only indication I have (sic) was that he was giving me background information, his height, weight, date of birth, place of employment, things like that (Tr. 21) . . . I sat him down next to me. He had to sign the fingerprint card and initial the fingerprint cards. When he was doing this, this is when I explained to him what I knew about the robbery, what I knew happened (Colvert had previously testified: that he had known what had taken place before the bank robbery and that he had been given information, and in effect been coached in this bank robbery. (Tr. 11)) and I said something like "It is a shame that this guy can get away with so many bank robberies and find somebody like you that is foolish enough to go and do it for him. He talked you into going into the bank." No reaction from him. I said: "I think you ought to think about it. I really don't think you ought to carry the full weight of this thing by yourself, especially when two other people were involved." He made no statement. I said: "Do you want to tell me about it?" The best I can recall he either shook his head or just didn't say anything. ( ⁶ He just stared ahead. I said, "Okay, I really think you ought to think about it", and I left.

Q You said that two or three times "You really ought to think about it"?

A I am sure I did.

Q And he either remained silent or shook his head?

A I don't recall him saying anything in response to it. It was almost like he tried to ignore me. If at most, he just shook his head.

Q Did you say anything along the lines that it would go better for you if you did make a statement?

A No, sir. (Tr. 22-23)

Agent Colvert at that juncture acceded to Hackley's right to terminate the interrogation concerning the robbery and ceased questioning him at that time. Colvert then drove Hackley to the Robbery Squad of the Metropolitan Police. There was no further conversation between the two concerning the robbery on the way to the Robbery Squad. (Tr. 24)

At the Metropolitan Police office Detective Fontanna, who had participated in appellant's arrest earlier in the morning, took on the task of obtaining the background information from Hackley for the standard police office report at about 8:15 a. m. (Tr. 35) Detective Fontanna had been with Colvert around 6:30 a. m. when Colvert orally informed Hackley of his Miranda rights at the time of Hackley's arrest and when Hackley replied that he understood them. (Tr. 6-8, 33-34) Detective Fontanna recalled that Hackley had acknowledged that he "understood his rights". (Tr. 34) This had all happened within about two hours and Fontanna did not readvise appellant of his rights before undertaking to fill in the necessary background information on the regular police form. (Tr. 43)

While they were filling out the police form Fontanna testified that he had the following colloquy with Hackley:

I got there and there was a typewriter there. I started to do a 163 (Police Report).

The defendant (Hackley), at that time, asked me if I knew a girl by the name of Sharon (his cousin (Tr. 37, 46)). He stated that she worked for the police department. I replied, "Yes, that she used to work for the used to be a cadet and used to work in our office." (Fontanna said he knew Sharon. "This was casual conversation". Hackley said he would like to talk to Sharon and Fontanna tried to call her but she was not working at the time. (Tr. 44)) From that I asked the defendant what he was going to do in relation to this offense? I then told him that we had we knew about Tyrone Briscoe and another subject by the name of Ricky Jones. He then stated that he wasn't going to take it by himself. He then proceeded to tell me what had occurred the day of the robbery.

He told me that Tyrone Briscoe had set the robbery up, that Tyrone had purchased a toy pistol at People's Drug Store in the Southwest Mall. With that I got in contact with Agent Colvert and he responded to the office. (Tr. 36-37) (The time was shortly after 9:00 a. m. (Tr. 12))

Fontanna did not make notes of what Hackley told him about the robbery and did not include Hackley's short statement in the Police Report he was filling out. (Tr. 45)

(5) The Confession

When Fontanna called Colvert back to the office, he stated that Hackley had, or was going to make a statement. (Tr. 26) When Colvert arrived, he found Fontanna still filling out the 163 form. Agent Colvert had twice advised Hackley of his rights, once at the time of his arrest and later when they were at police headquarters and Hackley had signed the printed notice and waiver, ⁷ and he did not readvise him again when he returned a short...