Ex parte Cobb, Crim. No. 76-279.
| Decision Date | 14 July 1977 |
| Docket Number | Crim. No. 76-279. |
| Citation | 448 F. Supp. 886 |
| Court | U.S. District Court — District of South Carolina |
| Parties | Ex parte Robert Marrion COBB, Petitioner. UNITED STATES of America v. Robert Marrion COBB et al. |
Thomas E. Lydon, Jr., U. S. Atty., D. S. C., Columbia, S. C. and William A. Coates, Asst. U. S. Atty., Greenville, S. C., for the Government.
Horace C. Smith and Thomas W. Whiteside of Whiteside, Smith & Taylor, Spartanburg, S. C., for Robert Marrion Cobb during trial. William B. Long, Jr., of Long, Black & Gaston, Greenville, S. C., for Cobb during his application for bail pending appeal, and on appeal to the Fourth Circuit.
On December 14, 1976, there was lodged in the United States District Court for the District of South Carolina, Spartanburg Division, Criminal Indictment No. 76-279, a superseding Indictment, entitled: United States of America v. John Jeffrey Barker, Mitchell Tyrone Gaston, Ansel Charles Gideon, Osborn Earl Rosman, and Robert Marrion Cobb. The Indictment charged each and every one of them with bankrobbery, in violation of Title 18, United States Code, §§ 2113(a), (d) and 2. The Grand Jury rendered a true bill on said Indictment, and petitioner, accompanied by his retained counsel, entered a plea of Not Guilty on December 22, 1976.
On March 18, 1977, the case was tried before a jury which returned a verdict of Guilty as to the petitioner. On March 28, 1977, defendant was given the following sentence:1
The defendant is hereby committed to the custody of the Attorney General or his authorized representative for imprisonment for a period of twenty-five (25) years, and defendant shall become eligible for parole under 18 U.S.C. § 4205(b)(2), at such time as the Parole Commission may determine.
At the time of sentencing counsel for defendant renewed his motion for a bond on appeal, and stated that the Notice of Appeal had been filed.2 The court took the matter under advisement, noted the presence of William B. Long, Jr., Esquire, as counsel, who was hired to assist trial counsel in a review of the record to determine whether or not appeal should be perfected. The court did not have the record at the time and the matter was continued until Mr. Long could review the record. A hearing was set for April 11, 1977, at 12:00 o'clock Noon. In due time the Petition for Bail was heard; the opposition of the government was heard at the same time.
At the bail hearing,3 counsel stated, later confirmed in brief of petitioner, that the only appealable issue which counsel could discern on a review of the transcript of record was the issue of whether the court should have advised the jury on the voluntariness of a "confession" made by defendant to FBI Agent McCormick.
This court has reviewed in detail the able brief for petitioner, the cases cited, and the transcript of record. Unfortunately, in situations such as exist here, the court has to pass upon whether or not it has made a possible error. If the court were convinced that it made an error which prejudiced the fair trial of the accused, it would be the duty of the court to immediately discharge the defendant and grant a new trial, sua sponte. The question, however, is whether or not the issue raised by the petitioner is an appealable issue, and this court has diligently searched the record with an attitude favorable to the accused. The court is not convinced that an appealable issue exists for the reasons hereinafter set forth. If the court was convinced that an appealable issue existed, then the court would repair to the question of what bail would be sufficient to guarantee the appearance of the petitioner at this court or some other, as the decision on appeal would make necessary, meanwhile to insure "the peace and dignity of the state" sic.
The record reveals the following colloquy during the trial (without the presence of the jury).
P. 218, tr.
DIRECT EXAMINATION—(continuing) (FBI Agent McCormick)
Q. (By Mr. Harper) When was the first time you talked to him?
A. I talked to Mr. Cobb on November 10th, 1976.
Q. And before talking to him, did you advise him of his constitutional rights?
A. I did.
Q. Did you identify yourself, Mr. McCormick?
A. I did.
Q. And advised him of his constitutional rights? Did you tell him what the purpose of your talking to him was?
A. I did.
Q. And what was that?
P. 219, tr.
A. I told him I wished to talk to him concerning the robbery of the Pacolet Bank and any implication he might have had in the bank robbery.
Q. Did you advise him of his constitutional rights?
A. I did.
Q. And what rights did you advise to him?
A. I exhibited to him an Advice of Rights Form, which we have a standard form. He read it, stated he understood it, but declined to sign it.
Q. Did you threaten him or coerce him in any way?
A. I did not.
* * * * * *
Q. (By Mr. Harper) Did you threaten him or coerce him in any way?
A. I did not.
Q. Did you ask him whether he knew what the form was about?
A. I did.
Q. And did you ask him whether or not he understood the form?
A. He stated he did, but he didn't wish to sign it at that time.
Q. Did he ask for an attorney?
A. He did not.
Q. Did you tell him one could be appointed in case he wanted one?
P. 220, tr.
A. It said it in the form.
Q. All right. Did he ask you any questions about the form that would indicate to you, as an experienced FBI Agent, that he did not understand his constitutional rights?
A. He did not.
Q. All right. Did he agree to answer any questions?
A. He did.
Q. Did he agree to waive his constitutional rights?
A. He did.
Q. (By Mr. Harper) Did he sign the form?
A. No, he did not.
Q. But he did agree to answer the questions?
P. 221, tr.
A. He did.
Q. Did you ask him whether or not he owned a gun?
A. I did.
Q. And what did he say?
A. He said he never owned a weapon.
Q. Did you ask him whether or not he knew Mr. Barker, Mr. Rosemond and Mr. Osmond?
A. I did.
Q. What did he say?
A. He said that he did not know them.
Q. Did you show him pictures of Mr. Rosemond and Mr. Osmond?
A. I did.
Q. Did he identify these pictures?
A. He said he did not know them.
Q. Did you ask him whether or not he had ever been to Pacolet?
A. I did.
Q. What did he say?
A. He said he had never been to Pacolet in his entire life?
Q. Subsequent to this interview, did you have occasion to talk to him again?
A. Yes, I did, I had another occasion to talk to him.
Q. When was that?
A. On December 15th.
Q. And did you advise him of his rights again?
A. I did.
P. 222, tr.
Q. Was he aware of his rights?
A. He was.
Q. Was it your judgment that he understood his rights at that time?
A. It was.
Q. What, if anything, did he tell you at that time?
A. He didn't tell me anything at that time.
Q. Did you ask him whether or not his name was Robert Marrion Cobb?
A. I did.
Q. What, if anything, did he say?
A. He denied his identity.
Q. Did you ask him whether or not he was Bobby Cobb?
A. I did.
Q. What, if anything, did he say?
A. He denied his identity.
P. 230, tr.
(BEFORE THE JURY)
Q. State your name please?
A. John McCormick.
Q. By whom are you employed?
A. By the Federal Bureau of Investigation.
* * * * * *
Q. All right, sir. Mr. McCormick, do you know an individual by the name of Robert Marrion or Bobby Cobb?
A. I do.
Q. And is he in the courtroom here today?
A. He is.
Q. Would you please point him out and tell us how he is dressed?
A. Mr. Cobb is sitting next to Mr. Whiteside. He has the blueish grey checkered suit on.
Q. Did you see Mr. Cobb around the time of the bank robbery?
A. I did.
Q. And when did you see him?
A. I saw Mr. Cobb on November 10th of 1976.
Q. Did he look similar to his appearance now, or was there some difference?
A. There was a difference.
Q. And what was the difference?
A. His hair was much lighter, it was an orange reddish color.
Q. An orange reddish color?
A. That's correct.
Q. So, it would be lighter than it is now?
P. 237, tr.
A. Yes, sir.
Q. Mr. McCormick, on that occasion, did you talk to Mr. Cobb?
A. I did.
Q. Did you advise him who you were?
A. I did.
Q. What did you tell him?
A. I advised him of my identity as a Special Agent of the Federal Bureau of Investigation. I exhibited to him my credentials which contained my picture on it identifying me. I told him I wished to talk to him concerning any participation he might have had in the Pacolet Bank robbery on 10-29-76, and also, at this time, I exhibited to him an interrogation advice of rights form which I asked that before he answer any questions, that he read it and sign it.
Q. Does that form advise him of certain constitutional rights that he has?
A. It does.
Q. Would you read that form to the Jury, please?
A. Yes, sir. It's title, "Interrogation Advice of Rights." It's got a time, place, a date and a time, which I filled in at the time. It starts off: ...
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