711 F.2d 80 (8th Cir. 1983), 81-2425, United States v. Eagle Elk

Docket Nº:81-2425.
Citation:711 F.2d 80
Party Name:UNITED STATES of America, Appellee, v. Robert EAGLE ELK, Jr., a/k/a Bobby Bear, Appellant.
Case Date:June 20, 1983
Court:United States Courts of Appeals, Court of Appeals for the Eighth Circuit
 
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Page 80

711 F.2d 80 (8th Cir. 1983)

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

June 20, 1983

Submitted Feb. 28, 1983.

Page 81

Before ROSS, McMILLIAN and JOHN R. GIBSON, Circuit Judges.

PER CURIAM.

Appellant, Robert Eagle Elk, Jr., was tried before a jury for voluntary manslaughter under 18 U.S.C. §§ 1153 and 1112 (1976), and convicted on the lesser-included offense of involuntary manslaughter. On appeal, this court reversed the conviction and remanded for a new trial on the grounds that the trial court had erred in admitting an inculpatory statement made by Eagle Elk during post-polygraph interrogation. 1 That decision was based on this court's prior holding in Fields v. Wyrick, 682 F.2d 154 (8th Cir.), rev'd per curiam, --- U.S. ----, 103 S.Ct. 394, 74 L.Ed.2d 214 (1982). Subsequently, the Supreme Court reversed this court's decision in Fields, 2 and vacated and remanded the present case for further consideration in light of Wyrick v. Fields, --- U.S. ----, 103 S.Ct. 394, 74 L.Ed.2d 214 (1982). 3 Having once again fully considered the issues raised on this appeal in light of these recent case developments, we affirm appellant's conviction.

Briefly, the facts giving rise to appellant's conviction and the present appeal are as follows: 4 On April 25, 1981, Eagle Elk, Richard Schreiner and Anthony Jacobs were traveling together in Eagle Elk's automobile. During an altercation among the individuals Schreiner was struck several times in the head with the butt of a rifle and subsequently died. On April 28, 1981, Eagle Elk was arrested in connection with Schreiner's death and sometime thereafter, upon the advice of counsel, Eagle Elk volunteered to undergo a polygraph examination. On July 23, 1981, Eagle Elk, accompanied by his counsel, 5 went to the Federal Bureau of Investigation office in Rapid City, South Dakota, for the polygraph. The examination was conducted by FBI Agent Diem. Prior to undergoing the polygraph, Eagle Elk was advised of his constitutional rights, 6 and signed a form stating that he understood those rights and was waiving those rights at that time. In addition, Eagle Elk signed a polygraph interview consent form which advised him that he could refuse to take the test, could stop the test at anytime and could refuse to answer any individual question.

After the polygraph examination was completed, Agent Diem advised Eagle Elk that the test indicated he was not telling the truth, and Diem continued questioning

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Eagle Elk without again advising him of his constitutional rights. During this interrogation Eagle Elk made an incriminating statement to the effect that he had struck Schreiner twice in the head with the rifle. At some point during the interrogation Eagle Elk requested to see his attorney. Appellant's pretrial motion to suppress this statement as not being voluntary was denied and the statement was eventually admitted at trial.

Following the precedent established in Fields v. Wyrick, supra, we originally held that Eagle Elk's incriminating statement was not voluntarily made in that he did not knowingly and intelligently waive his fifth amendment right to have counsel present at post-polygraph examination interrogation. See United States v. Eagle Elk, supra, 682 F.2d at 170. The Supreme Court, in reversing this court in Fields, held only that Fields' fifth amendment right to have counsel present during a custodial interrogation was not violated, but the Court apparently left open the question of whether the post-polygraph interrogation violated petitioner's sixth amendment right to counsel. See Wyrick v. Fields, supra, 103 S.Ct. at 397; id. at 400 (Marshall, J., dissenting). Consequently, this court granted petitioner Fields' request to consider that question on remand, and held that Fields had validly waived his sixth amendment right to have counsel present at the post-polygraph interrogation, and therefore, his incriminating statement obtained as a result of that interrogation was properly admitted at his trial. Fields v. Wyrick, 706 F.2d 879, 880 (8th Cir.1983) (on remand).

On February 24, 1983, we directed the parties in the instant case to brief the sixth amendment issue concerning the admissibility of appellant Eagle Elk's inculpatory statement made during post-polygraph test interrogation conducted in absence of his counsel. Our examination of the relevant case leads us to conclude that the appropriate standard for reviewing the validity of a waiver of the sixth amendment right to have counsel present at an interrogation 7 is essentially the same standard applied to waivers of the fifth amendment right to counsel where the right to counsel has been previously invoked. See Fields v. Wyrick, supra, at 880 (on remand). Compare Edwards v. Arizona, 451 U.S. 477, 482, 101 S.Ct. 1880, 1883-84, 68 L.Ed.2d 378 (1981) and Wyrick v. Fields, supra, 103 S.Ct. at 396 (fifth amendment) with Brewer v. Williams, 430 U.S. 387, 403-04, 97 S.Ct. 1232, 1241, 1242, 51 L.Ed.2d 424 (1977) (sixth amendment). That is, the government has the "heavy" burden 8 of proving that under the particular facts and circumstances of the case, the waiver was an intentional, voluntary, knowing, and intelligent relinquishment or abandonment of a known right or privilege. See Edwards v....

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