761 F.2d 589 (10th Cir. 1985), 84-1795, United States v. O'Driscoll

Docket Nº:84-1795.
Citation:761 F.2d 589
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Michael James O'DRISCOLL, Defendant-Appellant. Colorado Criminal Defense Bar, Amicus Curiae.
Case Date:May 07, 1985
Court:United States Courts of Appeals, Court of Appeals for the Tenth Circuit
 
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761 F.2d 589 (10th Cir. 1985)

UNITED STATES of America, Plaintiff-Appellee,

v.

Michael James O'DRISCOLL, Defendant-Appellant.

Colorado Criminal Defense Bar, Amicus Curiae.

No. 84-1795.

United States Court of Appeals, Tenth Circuit

May 7, 1985

Rehearing Denied June 4, 1985.

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[Copyrighted Material Omitted]

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Robert N. Miller, U.S. Atty., Denver, Colo. (Richard T. Spriggs, Asst. U.S. Atty., Denver, Colo., with him on brief), for plaintiff-appellee.

Isaac Howard Kaiser of Berenbaum & Weinshienk, Denver, Colo., for defendant-appellant.

John M. Richilano, Denver, Colo., on brief for amicus curiae.

Before BARRETT and SETH, Circuit Judges, and SEAY, [*] District Judge.

BARRETT, Circuit Judge.

The sole issue presented in this appeal is whether the sentence imposed by the trial court upon appellant O'Driscoll, for kidnapping, following conviction by a jury, of three hundered years in prison, with eligibility of parole following service of ninety-nine years, is outside the applicable statutory limits and thus illegal and an abuse of the trial court's discretion. 586 F.Supp. 1486 (1984). O'Driscoll entered a guilty plea to a charge of armed robbery prior to his trial on the kidnapping charge. A review of the facts relative to O'Driscoll's commission of the crimes of armed robbery and kidnapping will aid in placing the issue presented on appeal in focus.

Facts of Case

The evidence in this trial record discloses that on November 12, 1982, O'Driscoll bought a nine millimeter Smith & Wesson gun from the Mile Hi Pawnshop in Denver, Colorado. He used a false driver's license for identification. On December 16, 1982, he bought a Smith & Wesson model 29 .44 magnum at Foothills Shooting Center in Lakewood. He again used a false driver's license for identification. On January 20, 1983, O'Driscoll attempted to pawn the Smith and Wesson .44 magnum at the Lakewood Gem and Trading Post. The owner, Irwin Kass, informed O'Driscoll that he did not have a license to pawn goods; he recommended another shop. Within an hour, O'Driscoll returned to Mr. Kass's store, where Mr. Kass was then alone. O'Driscoll drew the gun, told Mr. Kass that it was a stick-up and ordered Mr. Kass to the floor. Mr. Kass complied. O'Driscoll then beat Mr. Kass on the head with the revolver until he was rendered unconscious. O'Driscoll stole Mr. Kass's wallet and some $400 from the store. Mr. Kass was hospitalized for a week and unable to work for more than three months. His injuries required more than 100 stitches in his scalp. In addition, he suffered two broken fingers, three cracked teeth, and his left ear was half torn off. Mr. Kass positively identified O'Driscoll as the man who had robbed and beaten him.

Karen Tietgens, who was O'Driscoll's girlfriend, testified that just before O'Driscoll assaulted Mr. Kass and robbed his store, she and O'Driscoll had attempted unsuccessfully to sell the yellow van he was driving in an effort to raise money. They then drove to Mr. Kass's store, where O'Driscoll entered carrying his gun and a newspaper. O'Driscoll returned to the van with the gun wrapped in the newspaper, covered with blood.

After the robbery, O'Driscoll and Karen Tietgens drove to the JCRS Shopping Center in Lakewood. O'Driscoll drove to a parking space next to that of Kent Leslie Martin. O'Driscoll ordered Mr. Martin to move over and he ordered Tietgens to get in Mr. Martin's car. O'Driscoll drove Mr. Martin's car to their motel where he paid the bill with the robbery money. O'Driscoll and Tietgens then departed for Kansas with Mr. Martin as a hostage. Throughout the kidnapping, O'Driscoll held Mr. Martin at gunpoint. Near Salina, Kansas, O'Driscoll dropped Karen Tietgens off at the Red

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Coach Inn truck stop at an interchange off I-135. O'Driscoll then drove Mr. Martin some three miles west and two miles south to a wooded area. Karen Tietgens testified that O'Driscoll told her he shot Mr. Martin and that he did so for her sake so that Mr. Martin could never identify them. Mr. Martin died of ten gunshot wounds. One wound in Mr. Martin's chest was inflicted when O'Driscoll pressed the gun against the flesh and pulled the trigger. Mr. Martin had several grazing gunshot wounds on his left hand, incurred from his attempts to shield his body with his hands while being shot.

Following the killing of Mr. Martin, O'Driscoll drove Karen Tietgens to Ohio, where they parted company temporarily. O'Driscoll went on to Springfield, Massachusetts, where he met Christie Blake, another girlfriend, on January 30, 1983. O'Driscoll picked up Ms. Blake in Mr. Martin's car, and he told her not to leave her fingerprints in the car because it was a dead man's car. The following day, O'Driscoll and Christie Blake robbed the People's Savings Bank in Holyoke, Massachusetts.

O'Driscoll then left Springfield and Ms. Blake, and drove to Groton, Connecticut, where he abandoned Mr. Martin's car in a parking lot. When the Connecticut police subsequently searched the car, they found a box of license plates from different states in the trunk. The police removed the rear view mirror of the car and examined it for fingerprints. The mirror contained the print of O'Driscoll's right ring finger.

O'Driscoll next paid a man to drive him to New York, where, after a brief reconciliation with Karen Tietgens, he continued cross-country, ending up in Puyallup, Washington, where he was arrested in the company of a Patty Case. When arrested, O'Driscoll was carrying a nine millimeter automatic weapon, which had been sold by Mile Hi Pawnshop to O'Driscoll in November of 1982. It matched the shell casings and slugs taken from Mr. Martin's body and the scene of the murder in Kansas. A subsequent search of Ms. Case's trailer residence, where O'Driscoll had been living, revealed numerous other weapons, including a Smith & Wesson Model 29 .44 magnum, which had been sold by Foothills Shooting Center to O'Driscoll in December of 1982.

O'Driscoll testified that he arranged with a friend named Jay, who he met at a bar but whose last name he could not remember, to borrow some money and to let Jay drive his yellow van from Las Vegas, Nevada, to Ohio. O'Driscoll stated that he had left both the nine millimeter and the .44 magnum in the back of the van because he had to fly from Las Vegas to San Diego and could not take the guns on the plane. He stated that the arrangement was for Jay to drive Tietgens to Ohio, and then proceed on with O'Driscoll to Massachusetts to rob a bank. O'Driscoll said that he flew from San Diego to Cleveland on January 24 or 25, 1983, and met Jay at the Cleveland airport, where Jay told him that "he had some problems and he took this guy's car ... and somewhere in Kansas him and Karen disposed of him." (Vol. V, pp. 545, 546). O'Driscoll also testified that he used Kent Martin's car to drive from Lorain, Ohio, to Springfield, Massachusetts, and that if he had known that either the nine millimeter or the .44 magnum had been used to murder a man, he would not have held onto them.

On cross-examination, O'Driscoll acknowledged that: he had pled guilty and was convicted in Massachusetts federal court of kidnapping a 68-year-old woman after a bank robbery on November 10, 1982; he had no explanation as to why Jay would have used O'Driscoll's favorite gun to kill Mr. Martin; and the reason why he had left Denver on December 21, 1982, was because he had held up the Western Federal Savings and Loan Association bank there the day before.

O'Driscoll was charged with kidnapping and armed bank robbery. He pled guilty to the armed bank robbery charge, and was sentenced to twenty-five years imprisonment. His trial before a jury on the instant kidnapping charge began on March 26, 1984, and on April 2, 1984, he was

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unanimously found guilty. On May 24, 1984, O'Driscoll was sentenced to serve three hundred years in prison, and to become eligible for parole after serving ninety-nine years.

Other Facts Before The Court at Sentencing

With regard to the guilty plea entered by O'Driscoll to the charge of armed bank robbery of the Western Federal Savings and Loan Association of Denver on December 20, 1982, while accompanied by one Christina Blake who was also carrying a hand gun, the trial court noted, inter alia: O'Driscoll was very aggressive; he pushed people around; he brandished his gun in making numerous demands while using loud profanities; he destroyed bank property; he fired a shot inside the bank and while leaving, he fired a shot through the window and threatened to kill all of the bank personnel. He robbed the bank of $3,384. The trial court found that the worst part was the fear that O'Driscoll instilled in all of the bank employees.

O'Driscoll, born August 6, 1953, at Springfield, Massachusetts, was the product of a broken marriage which resulted in his commitment to a training school at an early age; he married at an early age, became a father of two children and was divorced. He has never given any financial support to his children. In the seventh grade, O'Driscoll became a habitual truant. In April, 1978, he received a certificate of accomplishment in welding and was immediately hired by a manufacturing concern; however, between April, 1978, to date of sentencing, O'Driscoll had held down four jobs for a total working period of eighteen months. After his divorce, O'Driscoll became involved with many paramours, many of whom joined him in thefts and robberies. O'Driscoll admitted to commission of seven bank robberies. He further admitted to heavy consumption of alcohol, use of cocaine and many other drugs. During the presentence investigation process, O'Driscoll attempted to strike a "bargain" with the trial court: O'Driscoll would provide the location of some...

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