U.S. v. Eagle Elk

• Decision Date: 30 June 1982
• Docket Number: No. 81-2425,81-2425
• Citation: 682 F.2d 168
• Parties: 11 Fed. R. Evid. Serv. 103 UNITED STATES of America, Appellee, v. Robert Eagle ELK, Jr., a/k/a Bobby Bear, Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 168

682 F.2d 168

11 Fed. R. Evid. Serv. 103

UNITED STATES of America, Appellee, v. Robert Eagle ELK, Jr., a/k/a Bobby Bear, Appellant.

No. 81-2425.

United States Court of Appeals Eighth Circuit.

Submitted May 20, 1982.

Decided June 30, 1982.

Philip N. Hogen, U. S. Atty., D. S. D., Sioux Falls, S. D., Ted L. McBride, Asst. U. S. Atty., Rapid City, S. D., for appellee.

Gary D. Jensen, Lynn, Jackson, Shultz & Lebrun, P.C., Rapid City, S. D., for appellant.

Before ROSS, McMILLIAN and GIBSON, Circuit Judges.

PER CURIAM.

On May 21, 1981, the appellant, Robert Eagle Elk, Jr. was indicted for voluntary manslaughter under 18 U.S.C. §§ 1153 and 1112 (1976). On November 26, 1981, a jury returned a verdict of guilty on the lesser included offense of involuntary manslaughter, and the district court ¹ entered judgment on December 11, 1981. Of the several trial court errors upon which Eagle Elk grounds this appeal only his assertion that the trial court erred in failing to suppress a statement that he made to a federal investigator following a polygraph examination concerns us on appeal. For the reasons set forth herein, we reverse.

Only a brief outline of the facts is necessary for purposes of this decision. Eagle Elk's conviction stemmed from the beating death of Richard Schreiner on April 25, 1981. Eagle Elk, Schreiner, and another individual, Anthony Jacobs, were traveling together on the evening of April 25, 1981, in Eagle Elk's automobile. Schreiner was carrying a rifle. Apparently, an argument broke out between Schreiner and Eagle Elk. According to Eagle Elk, Schreiner poked him in the side with the rifle, and Eagle Elk stopped the automobile. Schreiner jumped out of the car and while threatening Eagle Elk, cocked, aimed and pulled the trigger on the rifle. When the rifle failed to fire, Eagle Elk grabbed the rifle from Schreiner and struck him in the face with a fist. Schreiner then took out a pistol and cocked the pistol while again threatening Eagle Elk. Eagle Elk struck Schreiner on the left side of the neck with the butt of the rifle. The blow knocked Schreiner to the ground. At this point, he set the rifle next to the passenger side of the automobile and took cover.

Eagle Elk testified at trial that Jacobs became involved in the affray when, as Jacobs was attempting to get out of the back seat of the car, Schreiner pushed the car door and pinned Jacobs' legs between the car door and the car. A fight between Jacobs and Schreiner then ensued in which Jacobs, brandishing a knife, slashed at Schreiner. According to Eagle Elk, Jacobs then grabbed the rifle laying against the car and struck Schreiner in the head with the rifle, knocking him to the ground. Jacobs then smashed the rifle butt over Schreiner's head again with sufficient force to break the stock of the rifle into two pieces.

Anthony Jacobs denied that he participated in any way in the altercation. According to Jacobs, it was Eagle Elk who, after striking Schreiner in the face with his fist and knocking him to the ground, struck Schreiner in the head a total of four times with the butt of the gun.

After his arrest, ² Eagle Elk, upon the advice of counsel, volunteered to undergo a polygraph examination on July 23, 1981. Eagle Elk's counsel was not present while the examination was being conducted. The examination was conducted by a Federal Bureau of Investigation officer, Agent Diem. Prior to being given the polygraph, Eagle Elk was advised by Agent Diem of his Miranda rights, signed a form stating that he understood those rights, and signed a polygraph interview consent form. The examination was conducted outside the presence of Eagle Elk's counsel. According to Eagle Elk, after the polygraph examination was completed, Agent Diem advised him that he was not telling the truth, and continued the interrogation. The government admitted that appellant was not given an additional Miranda warning after the polygraph examination but prior to this interrogation. During this interrogation Eagle Elk made an incriminating statement to the effect that he had struck Schreiner twice in the head with the rifle. According to Eagle Elk he requested to see his attorney prior to making this incriminating statement. However, Agent Diem testified at a suppression hearing held October 13, 1981, that Eagle Elk had not requested to see his attorney until after the incriminating statement had been made.

Eagle Elk argues that under Edwards v. Arizona, 451 U.S. 477, 101 S.Ct. 1880, 68 L.Ed.2d 378 (1981), his incriminating statement allegedly made after requesting to see his counsel should have been suppressed. In Edwards the Supreme Court held that interrogation must cease when an accused requests counsel, and that an accused is not subject to further interrogation unless he initiates further conversation with the police. Id. at 484-85, 101 S.Ct. at 1884-85. We do not believe Edwards controls the instant case in that at the suppression hearing the trial court accepted Agent Diem's testimony that Eagle Elk did not request an attorney until after he had made the incriminating statement. Such findings of fact by the trial court in suppression proceedings are subject to reversal only if they are found to be clearly erroneous, see, e.g., United States v. Poitra, 661 F.2d 98, 98 (8th Cir. 1981); United States v. Doby, 598 F.2d 1137, 1140 (8th Cir. 1979), and we cannot conclude on the basis of the record that the trial court made a clearly erroneous determination in the instant case.

However, Eagle Elk also contends that his incriminating statement should have been suppressed because, in the absence of an additional Miranda warning after the polygraph examination but prior to further interrogation, the statement must be viewed as not being voluntarily made. In light of this court's recent decision in Fields v. Wyrick, 682 F.2d 154 (8th Cir. 1982), we feel compelled to agree. In Fields this court reversed a rape conviction on the grounds that it was obtained as a result of an involuntary confession. The relevant circumstances in Fields are virtually identical to those in the instant case. Fields, upon the advice of counsel, consented to a polygraph examination to be conducted by an agent of the United States Army Criminal Investigation Division (CID). Fields' attorney was not present at the examination. Before the test was administered, Fields was fully advised of his constitutional rights and he signed a written form consenting to the polygraph examination. When the agent administering the examination advised Fields that the test indicated he was not telling the truth and subjected Fields to further interrogation without additional Miranda warnings, Fields made the incriminating statement that he had engaged in consensual sexual intercourse with the eighty-one year old victim.

This court held that "Fields did not knowingly and intelligently waive his right to have counsel present at the interrogation described above. Fields' incriminating statements were, therefore, not voluntarily made and should have been suppressed." Fields v. Wyrick, supra, at 158. Without engaging in an extensive discussion of the court's reasoning which led to this conclusion, we simply note that we are unable to distinguish the relevant factual circumstances presented by the instant case from those in Fields. Therefore, on the basis of this court's decision in that case, we reverse appellant's conviction for involuntary manslaughter, and remand to the district court with directions to order the release of the appellant or provide a new trial within a reasonable period of time. ³

ROSS, Circuit Judge, specially concurring.

I concur in the result in this case only because I am firmly convinced that it is required by this court's recent broad holding in Fields v. Wyrick, supra. Nevertheless, for the reasons stated in my dissenting opinion in Fields, I am steadfast in my belief that Fields was wrongly decided and inconsistent with this court's prior decision in United States v. Little Bear, 583 F.2d 411 (8th Cir. 1978).

The majority's conclusion in Fields v. Wyrick that the defendant's confession was involuntary does not rest on considerations of coercive conduct by the polygraph administrator, Fields' age, intelligence, emotional condition, or any other factors which clearly would be relevant to a determination of whether he might not have voluntarily, knowingly, and intelligently made the incriminating statement or waived his right to have counsel present. Instead, the majority relies solely on the facts that: (1) polygraph interrogation inherently holds "significant potential for abuse," see Fields v. Wyrick, supra, at 159; (2) even though Fields submitted to the polygraph upon the advice of his counsel, was fully advised of his constitutional rights and signed a written consent to the polygraph examination, there was "no evidence that Fields or his lawyer anticipated that the CID officer would attempt to elicit incriminating statements from Fields after the examination was run," id. at 160; ⁴ and (3) Fields was questioned immediately after administration of the polygraph without being reminded of his right against self-incrimination and his right to have counsel present. Id. at 160.

Thus, I am left with no alternative but to conclude that the majority in Fields has created a per se rule that, even though a defendant has been fully advised of his constitutional rights and has consented to a polygraph interrogation, his confession made after he has been advised that his polygraph examination shows deceit is involuntary unless the defendant is given an additional Miranda warning between the polygraph and the immediately subsequent questioning, or the government has explicitly advised the defendant prior to the polygraph that he may undergo questioning after the polygraph examination. Apparently, this rule obtains regardless of whether the defendant might be considered to understand...