701 F.2d 367 (5th Cir. 1983), 82-4097, United States v. Shaw

Docket Nº:82-4097.
Citation:701 F.2d 367
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Ronald Glen SHAW, Defendant-Appellant.
Case Date:March 15, 1983
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit
 
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701 F.2d 367 (5th Cir. 1983)

UNITED STATES of America, Plaintiff-Appellee,

v.

Ronald Glen SHAW, Defendant-Appellant.

No. 82-4097.

United States Court of Appeals, Fifth Circuit

March 15, 1983

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Robert L. Doyel, University of MS School of Law, University, Miss., for defendant-appellant.

Glen H. Davidson, U.S. Atty., John R. Hailman, Alfred E. Moreton, III, Asst. U.S. Attys., Oxford, Miss., for plaintiff-appellee.

Appeal from the United States District Court for the Northern District of Mississippi.

Before CLARK, Chief Judge, RUBIN and WILLIAMS, Circuit Judges.

JERRE S. WILLIAMS, Circuit Judge.

Ronald Glen Shaw was convicted by a jury of five federal offenses: (1) receiving a firearm after earlier being convicted of the felony of rape and assault with intent to rape, in violation of 18 U.S.C. Sec. 922(h); (2) first degree murder of Terrell Johnson, Jr., in violation of 18 U.S.C. Sec. 1111; (3) carrying a firearm unlawfully and using it to kill Terrell Johnson, Jr., in violation of 18 U.S.C. Sec. 924(c); (4) assault with intent to murder Lachelle Johnson, in violation of 18 U.S.C. Sec. 113; and (5) carrying a firearm unlawfully and using it in the assault of Lachelle Johnson, in violation of 18 U.S.C. Sec. 924(c). He was sentenced to life imprisonment

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plus twenty-one years. On appeal, Shaw alleges numerous errors: (1) the rifle found in his pickup truck was discovered as the result of an illegal search; (2) various statements were obtained from him in violation of his right to counsel; (3) his right to a fair trial was prejudiced by a pattern of prosecutorial misconduct, including comments on his right to remain silent, use of character evidence to prove he committed the crime in question, and improper statements during closing argument; (4) there was insufficient evidence to support the jury's verdict of premeditated murder; (5) the trial court's supplemental jury instructions were erroneous, and (6) counts in the indictment were multiplictous and should have been dismissed. Following an exhaustive review of the record, we conclude that Shaw's contentions are without merit. We affirm his conviction on all counts.

FACTS

Late Christmas night, 1980, Kenneth Brinkley was driving his automobile down a secluded two-lane highway in the sparsely populated area of Mississippi known as the Natchez Trace Parkway. 1 With him in the car were his son, his fiance, Linda Johnson, and her children, twelve-year-old Lachelle and nine-year-old Terrell Johnson. The three children were sleeping in the back seat. While passing the Ballard Creek rest area, Brinkley noticed a parked pickup truck, which appeared to be a dark-colored, red and white late model Ford with chrome trim on the side. Brinkley had seen no other vehicles on the road. Immediately after Brinkley passed the rest area, a rifle shot ripped through the car's back seat. The bullet struck the young Johnson boy in the legs and hit his sister in the hip.

Brinkley quickly sought help in the nearby town of Mathiston, telling the local police where the shooting had taken place and describing the pickup he had seen in the Ballard Creek rest area immediately prior to the shooting. Relying on this information, three officers proceeded to the Trace Highway about a half mile north of the rest area. After waiting approximately ten or fifteen minutes they saw a late model, two-tone pickup approaching from the south at 35 to 40 miles per hour. Shaw was apprehended in the truck after a chase in which speeds exceeded 110 miles per hour. Shaw was frisked and told his vehicle fit the description of one at the scene of the shooting. He was arrested for speeding and driving while intoxicated, handcuffed, and placed in a patrol car.

After Shaw got out of the truck, one of the officers shined a light through its open door and saw four bullets on the floor on the driver's side. Another officer then released the seat latch and folded back the driver's seat. Behind the seat, fully cocked, was a .35 caliber rifle. Shaw was read his Miranda rights and told of the traffic charges. He made no statement to police. Shaw was then driven to the sheriff's office in Ackerman, Mississippi. After he was again read his Miranda rights, he indicated that he wished to answer questions. Shaw told the sheriff that he had been "driving around" on the Natchez Trace Highway and stopped at "a pull-off place" because he was sick. He emphatically denied that he had fired his gun since deer hunting that afternoon.

Later that same night young Terrell Johnson died of his wounds. The next day, Friday, December 26, Shaw was questioned by FBI agents. He repeated his story that he did not load or fire his rifle after dark on Christmas Day. That night, a janitor at the hospital discovered in the hospital treatment room the bullet which had struck the two children. Saturday afternoon, December 27, FBI agents interviewed Shaw again. The agents showed Shaw the battered slug, and told him that ballistic tests were going to be performed on the bullet. Shaw then stated that he would answer no more questions without having an attorney present, and the interview was terminated. Shaw's parents were told that a ballistic report would be received by Monday morning, the 29th.

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Around 10:30 a.m. Monday, Shaw's parents called one of the agents and said that their son wanted to talk to him. The agent responded that he could not speak to Shaw because Shaw had requested an attorney. The parents insisted, and the FBI agent went to see Shaw in person, accompanied by another agent. At this point, the ballistic report had been received. It indicated conclusively that Shaw's rifle had been the one to fire the shot. The agents readvised Shaw of his rights. Shaw explained that he, not his parents, wanted the agents to hear the story. The agents had Shaw carefully study a written Miranda waiver, which he signed. The agents then agreed to listen to Shaw's story. Shaw said that his earlier statement was false, that on Christmas night he had been "headlighting deer" from the Pigeon Roost rest stop, and while walking into the woods north of the area he had slipped and fallen, causing his gun to go off as it hit the ground. He saw the car pass, and worried that he had hit it, but because the car seemed to be proceeding normally, he assumed that it had not been hit. He then went back to his truck, waited a few minutes, and began driving on the Trace Highway where he was stopped by the state police.

On December 30, the sheriff filed a state complaint for first degree murder of Terrell Johnson. Following appointment of counsel and a preliminary hearing on January 12, 1981, Shaw was bound over to the federal grand jury, and on January 29, indicted.

At the conclusion of trial, the jury found Shaw guilty on all counts. His motions for judgments of acquittal and for a new trial were denied, and he was sentenced to imprisonment for life, plus twenty-one total years for the other offenses. This appeal follows.

I. SEARCH OF VEHICLE

  1. At Time of Apprehension

    Shaw's first contention is that the district court erred in not suppressing as evidence the rifle and shells seized by the officers from his pickup during the initial stop on the night of December 25, 1980.

    It is a cardinal principle of Fourth Amendment jurisprudence that searches conducted outside the judicial process of obtaining a warrant are per se unreasonable, except those conducted in a few narrowly defined situations. The exceptional situations are those in which "the societal costs of obtaining a warrant, such as danger to law officers or risk of loss or destruction of evidence, outweigh the interest of recourse to a neutral magistrate." Arkansas v. Sanders, 442 U.S. 753, 759, 99 S.Ct. 2586, 2590, 61 L.Ed.2d 235 (1979); Coolidge v. New Hampshire, 403 U.S. 443, 455, 91 S.Ct. 2022, 2032, 29 L.Ed.2d 564 (1971). Predicated on this "exigent circumstances" rationale is the so-called "automobile exception", first articulated by the Supreme Court in Carroll v. United States, 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543 (1925). In Carroll, the Supreme Court held that a warrantless search of an automobile on a highway is not unreasonable within the meaning of the Fourth Amendment so long as the police have probable cause to believe that the "contents of the automobile offend against the law". Id. at 159, 45 S.Ct. at 287.

    Recently, in United States v. Edwards, 577 F.2d 883 (5th Cir.) (en banc), cert. denied, 439 U.S. 968, 99 S.Ct. 458, 58 L.Ed.2d 427 (1978), this Court stated that probable cause to search an automobile exists when "trustworthy facts and circumstances within the officer's personal knowledge would cause a reasonably prudent man to believe that the vehicle contains contraband." Id. at 895. We stressed that probable cause is the "sum total of layers of information and the synthesis of what police have heard, what they know, and what they observed as trained officers." Id., quoting Smith v. United States, 358 F.2d 833, 837 (D.C.Cir.1966), cert. denied, 386 U.S. 1008, 87 S.Ct. 1350, 18 L.Ed.2d 448 (1967). Each individual layer of information is not to be weighed. Rather, the "laminated total" of the facts available is the source of the justification for a vehicle search without a warrant. United States v. Edwards, supra, 577 F.2d at 895, quoting

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    Smith v. United States, supra, 358 F.2d at 837; Doescher v. Estelle, 666 F.2d 285, 289 (5th Cir.1982).

    Shaw argues that the totality of the circumstances known to the...

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