Bailey v. United States, 9795-9798

• Decision Date: 11 June 1969
• Docket Number: No. 9795-9798,10025.,9795-9798
• Citation: 410 F.2d 1209
• Parties: James William BAILEY, Appellant, v. UNITED STATES of America, Appellee. Sidney ROLLS, aka Sidney Ross, Appellant, v. UNITED STATES of America, Appellee. Gary Lee WILSON, Appellant, v. UNITED STATES of America, Appellee. Leonard Leroy CANN, Appellant, v. UNITED STATES of America, Appellee. Robert FREEMAN, Jr., Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Tenth Circuit

410 F.2d 1209 (1969)

James William BAILEY, Appellant, v. UNITED STATES of America, Appellee.

Sidney ROLLS, aka Sidney Ross, Appellant, v. UNITED STATES of America, Appellee.

Gary Lee WILSON, Appellant, v. UNITED STATES of America, Appellee.

Leonard Leroy CANN, Appellant, v. UNITED STATES of America, Appellee.

Robert FREEMAN, Jr., Appellant, v. UNITED STATES of America, Appellee.

Nos. 9795-9798, 10025.

United States Court of Appeals Tenth Circuit.

May 16, 1969.

Rehearing Denied June 11, 1969.

COPYRIGHT MATERIAL OMITTED

Stephen J. Mermigis, Kansas City, Kan., for appellant, James William Bailey.

Robert J. Foster, Kansas City Kan., for appellants, Sidney Rolls and Leonard Leroy Cann.

Bill Yockey, Kansas City, Kan., for appellant, Gary Lee Wilson.

James H. Paddleford, Oklahoma City, Okl., for appellant, Robert Freeman, Jr.

Benjamin E. Franklin, U. S. Atty., Topeka, Kan. (John R. Martin, Asst. U. S. Atty., with him on the brief), for appellee.

Before MURRAH, PICKETT and HOLLOWAY, Circuit Judges.

Rehearing Denied in No. 10025 June 11, 1969.

PICKETT, Circuit Judge.

During the evening of November 19, 1966, Carolyn E. Jackson, a 19-year-old housewife, was seized from the parking lot at St. Luke's Hospital in Kansas City, Missouri by a group of young Negroes and taken by automobile to Kansas City, Kansas where she was raped by various individuals. Within a few days James William Bailey, Evage James Howard, Robert Dan Sharp, Sidney Rolls, aka Sidney Ross, Gary Lee Wilson and Leonard Leroy Cann were taken into custody by the Kansas City, Kansas police on a charge of rape. On January 12, 1967 a Federal Grand Jury returned an indictment charging these individuals and Robert Freeman with kidnaping Carolyn E. Jackson and transporting her in interstate commerce from Kansas City, Missouri to Kansas City, Kansas for sexual gratification in violation of 18 U.S.C. § 1201.¹ All of those accused in the indictment except Freeman were tried jointly. Howard and Sharp were acquitted, but Bailey, Rolls, Wilson and Cann were convicted and sentenced to life imprisonment. Freeman was not apprehended until later. He was convicted at a separate trial and sentenced to life imprisonment. Separate appeals were taken, all of which will be considered in this opinion.

The trial evidence showed that Mrs. Jackson had been visiting her husband who was confined in the St. Luke's Hospital in Kansas City, Missouri. She left the hospital at approximately 9:40 p. m. and proceeded to the multi-decked parking lot maintained by the hospital. After she entered her automobile preparatory to returning home, a man entered the car and seized her. With the assistance of another man, Mrs. Jackson was forcibly removed from her automobile and transferred to the car driven by the abductors where she was held on the floor between the front and rear seats. The automobile was driven to a small fiveroom, shack-like, dilapidated house in Kansas City, Kansas in which four Negro men resided. The locked door to this house was forced open and the victim was removed from the automobile and taken inside. Herbert Brown, one of the occupants was "pulled out of" the bed on which he was sleeping and told to leave the room. Mrs. Jackson was thrown upon the bed and raped numerous times. Later, she was taken to an old vacant house in the same area, where the abuse continued. The victim testified that at the two places she was raped at least fourteen times. Thereafter, while in the same automobile that had been used in the prior transportation, she was compelled to have unnatural relations with two of her assailants. Approximately two hours after the incident at the hospital, the victim was released on a Kansas City, Kansas street and the group fled. She found her way to a home and the police were notified.

While being held by state officers under a state charge, Rolls was interrogated by agents of the F.B.I. and admitted his participation in the abduction and the rape. He signed a written statement to that effect. Wilson and Cann made oral statements admitting that they took part in the abduction and the rape. Additional facts will be referred to in the consideration of the various assignments of error.

Following the return of the indictment, the district court denied motions by individual defendants for separate trials. The trial court found that there were no inconsistencies in the several defenses which would prejudice the defense of others in a trial. As authorized by the 1966 amendment to Rule 14, Fed.R.Crim. P., the court examined the written confession of Rolls and deleted therefrom all references to the names, descriptions and places of residence of any person other than Rolls mentioned therein as having participated in the alleged crime. Furthermore, at proceedings to determine the voluntariness of the oral incriminating statements of Wilson and Cann, the court, to prevent prejudice to other defendants and the possibility of a mistrial, ordered that witnesses testifying to these oral statements should not repeat to the jury any references made by Wilson or Cann to the participation of any other defendant in the case. There was strict observance of this order during the trial.²

Rule 8(b), Fed.R.Crim.P., provides that "Two or more defendants may be charged in the same indictment or information if they are alleged to have participated in the same act or transaction or in the same series of acts or transactions constituting an offense or offenses. Such defendants may be charged in one or more counts together or separately and all of the defendants need not be charged in each count." Defendants charged jointly in an indictment are not entitled to separate trials as a matter of right. The granting of a separate trial is discretionary with the trial court. Opper v. United States, 348 U.S. 84, 75 S.Ct. 158, 99 L.Ed. 101; Glass v. United States, 10 Cir., 351 F.2d 678; Walton v. United States, 10 Cir., 334 F.2d 343, cert. denied, 379 U.S. 991, 85 S.Ct. 706, 13 L.Ed.2d 612; Baker v. United States, 10 Cir., 329 F.2d 786, cert denied, 379 U.S. 853, 85 S.Ct. 101, 13 L.Ed.2d 56. Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476, is not to the contrary. We find no abuse of discretion in the denial of the several motions for a severance.

Rolls moved to suppress his written and oral statements upon the grounds that they were coerced and obtained without adequate advice as to his constitutional rights. After a full evidentiary hearing, the court found that Rolls' statements had been given voluntarily and without coercion, and that he had been advised of all of his constitutional rights, including his right to counsel.³

F.B.I. agents testified that prior to any interrogation Rolls was informed of his rights and a waiver statement was read to him; that he signed a waiver before making or signing an incriminating statement. The warnings given Rolls satisfied constitutional standards. Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694.

The waiver signed by Cann at the time his oral statement was made indicates that it was signed by him after the statement was given.⁴ Cann testified that this waiver was not read to him nor signed until after he had made the statement. Two F.B.I. agents testified that prior to interrogation Cann was fully advised of his right to counsel and to the other rights contained in the written waiver, and that the written waiver itself was signed prior to interrogation. The conflict in this evidence was one to be resolved by the trial court. Thomas v. United States, 10 Cir., 394 F.2d 247. The error as to the time of the waiver as shown on the form itself was not fatal.

We find no error in the admission in evidence of the oral statements made by Wilson and Cann to the agents of the F.B.I. Their admissibility was determined after an evidentiary hearing before the trial court. The agents testified that prior to interrogation each was advised that he must understand his rights before any questions were asked; that each was told that he had a right to remain silent and that anything he might say could be used against him in court; that he had a right to the advice of an attorney before answering any questions; that if he could not employ an attorney, one would be appointed for him before questioning; and that at any time during the questioning, he might discontinue his answers and until such time as he had advice of counsel. The agents testified that immediately thereafter and before questioning, Cann executed a waiver of those rights.⁵

Prior to interrogating Wilson, the F.B.I. agents testified that warnings similar to those given Cann were related to Wilson. At the hearing on the admission of his statements, Wilson testified that he did not remember what was said in the conversation he had with the F.B.I. agents on December 1, 1966, but that prior thereto he had talked to his attorney. There is also evidence that he had talked to his father and other relatives prior thereto. The record fully supports the court's finding that the statements made by Wilson were not coerced in any manner and were voluntary.⁶ The warnings and waivers referred to were obviously patterned to conform to the principles of Miranda v. Arizona, supra, and were in accordance with established constitutional requirements.

We are satisfied that the evidence is sufficient to support the convictions of Rolls, Cann, and Wilson.

During closing argument, counsel for the Government made certain questionable remarks⁷ which were objected to by defense counsel. The court sustained the objection and very carefully admonished the jury to disregard the remarks. This court has recently reiterated that unless misconduct on the part of the prosecution can be said to have influenced the jury's verdict, reversal will not be required. Devine v. United States, 10 Cir., 403 F.2d 93. Ordinarily, such error may adequately be cured by striking the objectionable remarks and...