Golliher v. United States

Decision Date30 June 1966
Docket Number18073,No. 18069,18121.,18069
Citation362 F.2d 594
PartiesRichard Lee GOLLIHER, Appellant, v. UNITED STATES of America, Appellee. Harry Richard HOLMES, Appellant, v. UNITED STATES of America, Appellee. Carl Dean WHEELER, Appellant, v. UNITED STATES of America, Appellee.
CourtU.S. Court of Appeals — Eighth Circuit

COPYRIGHT MATERIAL OMITTED

Richard J. Bruckner, of Schrempp, Lathrop, Rosenthal & Bruckner, Omaha, Neb., for appellants Richard Lee Gollither and Carl Dean Wheeler; David S. Lathrop, of Schrempp Lathrop, Rosenthal & Bruckner, Omaha, Neb., on the brief.

Alfred A. Fiedler, Omaha, Neb., for appellant Harry Richard Holmes.

Russell J. Blumenthal, Asst. U. S. Atty., Omaha, Neb., for appellee; Theodore L. Richling, U. S. Atty., Omaha, Neb., on the brief.

Before MATTHES and GIBSON, Circuit Judges, and HUNTER, District Judge.

GIBSON, Circuit Judge.

This is an appeal from the United States District Court for the District of Nebraska wherein appellants Golliher, Wheeler, and Holmes were convicted of unlawfully entering a Federally insured bank in violation of 18 U.S.C. § 2113 (a).1

A little after midnight on the morning of April 28, 1963, Marshal Padgett of the small town of Wallace, Nebraska, was parked in his car across the street from the Farmers State Bank of Wallace. With him were two teen-age youths, Gary Gier and Rodney Ridenour. First, they observed a red and white Pontiac drive by them. A few minutes later they observed two men at the front door of the bank. A little later they noticed two men on the roof of the bank. All three of the individuals in the Marshal's car observed the two men through high power binoculars belonging to the Marshal. Upon hearing the sound of splintering wood, they drove to the back of the bank, but the men they observed had disappeared.

Two hours later, at about 2:00 a.m., Deputy Sheriff Kasha received a call from County Sheriff Gilster describing the vehicle seen by Marshal Padgett at the scene of the crime. At about 3:00 a.m. Deputy Kasha observed a red and white 1956 Pontiac coming from the direction of Wallace. He stopped the car and arrested appellant Holmes for investigation of the bank burglary.

Shortly after noon the same day, Sunday, April 28, about twelve hours after the crime, Marshal Padgett received a call indicating that two men were walking along the railroad tracks away from Wallace. F.B.I. Agents Green, Ryan, and Marshal Padgett went to where the men had been spotted. Upon identification by Marshal Padgett, Agent Green arrested appellants Golliher and Wheeler. The three appellants were taken before a United States Commissioner the next afternoon, Monday, April 29, 1963, in the neighboring town of North Platte, Nebraska.

Appellants were brought to trial before a jury in September 1964. However, a mistrial was declared. In April 1965 appellants were again brought to trial. They were found guilty by the jury and sentenced by the Court. Appellants have lodged a large number of complaints: (1) They allege that their arrests were illegal; (2) After their arrests they state that they were illegally questioned; (3) During their detention, they argue, their clothing was unconstitutionally seized; (4) The method of their being viewed by government witnesses is challenged; (5) Under the circumstances of this trial, appellants allege that it was error not to grant them separate trials; (6) The right of confrontation, appellants contend, was denied to them, and (7) Finally, they argue, that the trial court erred in not instructing on police officer bias and erroneously instructing on the flight of the accuseds.

I. As one can see from the outline of appellants' numerous complaints, they are alleging various illegal police activities taking place after their arrest, such as the method of interrogation, the seizure of their clothing, and the view by government witnesses. As a basis for each of these arguments, appellants vaguely contend that they were illegally arrested. They do not contend that there was a lack of probable cause for their arrests. Rather, they make some broad complaints about not being informed of their rights against self-incrimination and not being provided with counsel. Appellants' argument is without legal foundation.

It is only when incriminating admissions are made during an interrogation that the question arises as to whether an accused has been warned of his rights and been denied the opportunity to consult with his attorney. See, Escobedo v. State of Illinois, 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977 (1964). Whether or not an accused was so warned at the instant of his arrest has no effect upon the validity of the arrest. Even were we to accept appellants' testimony that they were not properly informed, which proposition was in dispute, the law does not now, nor has it ever, required as a prerequisite for a valid arrest that the arresting officer inform the arrested person of his numerous Constitutional protections. To so require would place an unwarranted and unrealistic burden on the average law enforcement officer and provide the accused with no substantial protection that he now does not have under the law.

Although appellants have made no issue of this point, we have examined the record and have concluded that there was probable cause for the arrest of all three of the appellants. Therefore, we must conclude that the arrests in question were valid.

II. On much the same testimony appellants contend that their interrogation was illegal under the doctrine of Escobedo v. State of Illinois, supra. Escobedo held that statements elicited by the police during an interrogation may not be used against an accused at a criminal trial where the investigation is no longer a general investigation into an unsolved crime, where the suspect has requested and been denied an opportunity to consult with his lawyer and where the police have not effectively warned him of his right to remain silent.

As applied to two of the appellants, Golliher and Wheeler, perhaps the prime distinguishing factor is that unlike Escobedo, they made no admission or confession which was admitted as evidence in their trial. The questioning of these appellants only elicited statements of their innocence. Mere complaints about a violation of an accused's Constitutional rights will not warrant a blanket reversal of his conviction. These appellants must affirmatively point to some prejudicial evidence that was elicited by the alleged illegal questioning. This they failed to do.

Furthermore, there is very strong evidence indicating that these appellants were not the victim of abuses specifically condemned in the Escobedo opinion. There is substantial evidence from which the trial court could conclude that appellants, Golliher and Wheeler, from the time of their arrest, throughout their detention were adequately informed of their rights. F.B.I. Agent Green testified that at the time of their arrest he advised Golliher and Wheeler of their right to remain silent, to consult an attorney, and that any statements they made might be used against them. F.B. I. Agent Ryan testified that he was present at the time of the arrest of Golliher and Wheeler and that he heard Agent Green so inform the two appellants, both at the time of their arrest and later while they were being taken to the town of North Platte. The testimony further indicates that subsequent to their arrest they were not questioned by the F.B.I. until after they were brought before the United States Commissioner the following afternoon.

In their hearing before the Commissioner they were again informed of their various rights. Following the hearing, both of these appellants were questioned by Agent Anderson. Agent Anderson testified that he again informed Golliher and Wheeler of their right to consult an attorney, their right to remain silent, and of the possibility of introducing against them any statements they made. Both of these appellants protested their innocence, with Wheeler even commenting "that he didn't need an attorney, that he hadn't done anything wrong."

There is additional evidence which indicates that Golliher and Wheeler did not request an attorney or the use of the telephone. There is nothing to indicate that the questioning was in any way unreasonable. Certainly, appellants Golliher and Wheeler have demonstrated no basis upon which this Court should reverse their convictions under the dictates of Escobedo.

Unlike Golliher and Wheeler, it is true that appellant Holmes made two damaging admissions to F.B.I. agents that were admitted against him. However, we do not believe that Escobedo demands a reversal of his conviction, as the statements were voluntarily made under conditions not proscribed by Escobedo.

Prior to making these admissions, Holmes was fully informed of his rights and the consequences of his admissions. Upon his arrest Holmes was generally informed of his Constitutional rights by Deputy Sheriff Kasha. At his appearance before the Commissioner, appellant Holmes was clearly informed of his rights and provided with an opportunity to contact friends or an attorney.

The first admission of Holmes came shortly after the hearing before the Commissioner and was made to Agent Anderson. Agent Anderson testified that in addition to the warning given by the Commissioner he again informed Holmes of his right to remain silent, that statements made by him would be admissible against him, and his right to counsel. After only fifteen minutes of questioning, Holmes orally admitted the commission of the crime in concert with the other appellants. He thereafter indicated his desire to remain silent. He was pressed no further, and the interview was promptly terminated. A written statement was never obtained. There is ample evidence to support the finding that Holmes never requested an attorney, and there is no evidence that an attorney was prohibited from conferring with him. All of the...

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