755 F.2d 382 (5th Cir. 1985), 84-1268, United States v. Webb

Docket Nº:84-1268.
Citation:755 F.2d 382
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Keith Bryan WEBB, Defendant-Appellant.
Case Date:March 04, 1985
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit

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755 F.2d 382 (5th Cir. 1985)

UNITED STATES of America, Plaintiff-Appellee,


Keith Bryan WEBB, Defendant-Appellant.

No. 84-1268.

United States Court of Appeals, Fifth Circuit

March 4, 1985

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[Copyrighted Material Omitted]

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Keith Bryan Webb, pro se., and David Keltner, (court-appointed), Fort Worth, Tex., for defendant-appellant.

Edward C. Prado, U.S. Atty., Sidney Powell, Ricardo Gonzales, Asst. U.S. Attys., San Antonio, Tex., for plaintiff-appellee.

Appeal from the United States District Court for the Western District of Texas.

Before GOLDBERG, JOHNSON, and DAVIS, Circuit Judges.

JOHNSON, Circuit Judge:

Keith Webb was convicted of second degree murder in violation of 18 U.S.C. Sec. 1111. 1 In addition, Webb was convicted of two counts of injury to a child in violation of 18 U.S.C. Secs. 7 and 13 (the Assimilative Crimes Act) 2 and Tex.Penal Code Ann. Sec. 22.04(a). 3 Webb appeals his convictions

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asserting that three confessions admitted at trial were obtained in violation of his fifth, sixth, and fourteenth amendment rights. 4 Finding merit to Webb's arguments, this Court holds that two of the three confessions were obtained in violation of Edwards v. Arizona, 451 U.S. 477, 101 S.Ct. 1880, 68 L.Ed.2d 378 (1981). Accordingly, Webb's convictions are reversed, and the case remanded for a new trial.

I. Background

Fort Bliss is a military reservation located in El Paso, Texas. June Webb was a soldier in the United States Army stationed at Fort Bliss at the time of the events in issue in this appeal. June Webb resided in military housing on the base, along with her putative husband Keith Webb, the defendant in this case. 5 Between one and two o'clock in the morning of September 6, 1983, June Webb and Keith Webb appeared at the Criminal Investigation Division (CID) office at Fort Bliss ostensibly to report that June Webb had been raped. Once June Webb was physically separated from Keith Webb in the CID office, June Webb asserted that Keith Webb had killed her son, Steve Marcel Wilson, some weeks earlier.

After obtaining further details from June Webb, the CID agents approached Keith Webb stating that they desired to question him about an alleged homicide. Keith Webb fled the CID office area into the dark, and the agents were unable to locate him. Approximately six hours later, the CID was notified that an unknown individual was on top of a communications tower near the CID office and was threatening to commit suicide. When the CID agents arrived at the tower they were able to identify the individual as Keith Webb. Almost immediately upon being spotted by the CID agents, Webb shouted that if they would get his wife and a priest, he would tell them where the body was buried. Record Vol. 3 at 32-33; 55-56.

While on the tower, Webb threatened to commit suicide. Unable to persuade Webb to come down from the tower, the CID agents summoned an army psychiatrist and CID crisis negotiator. By means of a mechanical device known as a "cherry picker", the psychiatrist and negotiator were elevated to a position near the tower where they could communicate with Webb. Initially, Webb was much higher on the tower than the negotiators, but he eventually came down to their level. In order to take Webb's mind off his threatened suicide, and to talk Webb down from the tower, the negotiators engaged Webb in a continuing dialogue. While on the tower, Webb repeatedly confessed to the psychiatrist and negotiator, stating that he had bashed his son's head against a wall, that he had scalded his son, that his son had died, and that he had buried him in the desert. Neither the psychiatrist nor the negotiator gave Webb Miranda 6 warnings.

At approximately 10:00 a.m. Webb climbed down from the tower, was handcuffed and advised of his rights. Webb indicated that he wanted a lawyer before he would answer any questions. Webb was then taken to the CID office and allowed to see June Webb, as Webb had requested. Upon seeing her, Webb stated, "Well, if I'm going down, you're going down with me, so you might as well tell them you're a part of it." Record Vol. 3 at 58. Webb was then allowed to sleep on a couch.

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At 11:00 a.m. FBI agents arrived at the CID office. 7 Webb was again given Miranda warnings, and Webb for the second time requested counsel before answering questions. The FBI agents then left to conduct their initial investigation of the alleged homicide. At 1:55 p.m. the FBI agents returned to the CID office and formally arrested Webb. The FBI agents again advised Webb of his rights, and for the third time Webb requested an attorney. Webb was then taken to the FBI office, where he was fingerprinted, photographed, and advised of his rights. For the fourth time, Webb asked for an attorney. At each request for an attorney, the agents properly ceased questioning Webb. The FBI agents then booked Webb into the El Paso County Jail at approximately 3:00 p.m. on September 6, 1983. The booking card stated that Webb was charged with murder on a federal reservation.

The FBI agents returned to their office to prepare a complaint so that Webb could be presented to a magistrate that day. A complaint was presented to a magistrate at 5:15 p.m. that evening, but the magistrate found the complaint unacceptable. The magistrate directed the agents to redraft the complaint and present Webb at 11:00 a.m. the following day. Webb eventually was presented at the designated time on September 7, 1983.

Meanwhile, at the El Paso County Jail, Officer Simmons, the classification officer on duty, allowed Webb to make a telephone call and then gave Webb something to eat and drink. According to Simmons, in order to determine where in the jail population to place Webb, Simmons asked Webb, "[W]hat kind of shit did you get yourself into?" According to Simmons, Webb's surprising reply was: "I murdered my son and buried him in the desert." Simmons then asked Webb, "Don't you think it be better if he got a Christian burial?" Record Vol. 3 at 76, 80-82, 95, 98. And then Simmons further asked, "Would you like to talk to the people that brought [you] here?" Record Vol. 3 at 76, 90. Webb indicated that he did want to talk to the FBI agents. Simmons relayed this information to his superior officer. The FBI was contacted at about 4:15 p.m. and given the message that Webb wished to talk with them.

Two hours later the FBI agents arrived at the jail. The agents again advised Webb of his rights and asked him if he wanted to talk to them. Webb signed a form waiving his rights. After trying to explain where he had buried his son, Webb agreed to lead the agents to the grave. Webb was not questioned on the trip to the grave. Webb indicated where the agents should drive and stop the car; he then walked them to within a few feet of the grave. Webb identified the grave by stating, "There's Stevey."

On the way back to jail, Webb asked the agents what would happen next. The agents began explaining the procedures that would begin with Webb's appearance before the magistrate the next day. Webb, however, wanted to talk about the events leading up to the death of his son. Webb gave the agents a detailed explanation of how his son died, stating that he (Webb) had bashed the child's head against the wall until a soft spot in the skull developed. The child suffered seizures thereafter. Webb also admitted placing the boy in a tub of scalding water to punish the child. After that, the boy's legs began to peel, he became lethargic, and eventually he died. Webb then related how he had wrapped the boy's body in a brown blanket and buried the body in the desert.

At trial, Webb conducted his defense pro se. In representing himself, Webb asserted that his confessions were obtained in an unconstitutional manner. 8 Webb asserts

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that his confessions were obtained in violation of his fifth, sixth, and fourteenth amendment rights. 9 Webb urges that the confession on the tower was inadmissible because he was not given Miranda warnings by the psychiatrist or negotiator. Webb further asserts that the jailhouse confession was inadmissible, among other reasons, because it was obtained in violation of Edwards. Finally, Webb argues that testimony that he led the FBI agents to the grave, any statements made to the FBI, and his confession on the way back to jail are all inadmissible because (1) they are the fruit of illegal conduct, and (2) they were obtained in violation of his constitutional rights. This Court concludes that both the jailhouse confession and the later statements to the FBI were obtained in violation of Edwards. This Court also concludes that the admission of those statements at Webb's trial was not harmless error. Consequently, Webb's convictions must be reversed and the case remanded for a new trial.

II. Edwards v. Arizona

In Edwards v. Arizona, 451 U.S. 477, 101 S.Ct. 1880, 68 L.Ed.2d 378 (1981), the Supreme Court addressed the question of whether the fifth, sixth, and fourteenth amendments require suppression of post-arrest statements obtained after a defendant had invoked his right to consult with counsel before further interrogation. Silva v. Estelle, 672 F.2d 457 (5th Cir.1982). See Jordan v. Watkins, 681 F.2d 1067, 1073 (5th Cir.1982) (distinguishing a request at the initial appearance for appointed counsel to represent a defendant in further judicial proceedings from a request for counsel with respect to custodial interrogation). In Edwards, the Supreme Court held:

[W]hen an accused has invoked his right to have counsel present during custodial interrogation, a valid waiver of that right cannot be established by showing only that he responded to further police-initiated custodial interrogation even if he has been...

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