Parson v. United States, 9559.

• Decision Date: 18 January 1968
• Docket Number: No. 9559.,9559.
• Parties: Billy James PARSON, II, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Tenth Circuit

387 F.2d 944 (1968)

Billy James PARSON, II, Appellant, v. UNITED STATES of America, Appellee.

No. 9559.

United States Court of Appeals Tenth Circuit.

January 18, 1968.

Thomas M. Thompson, Albuquerque, N. M., for appellant.

John A. Babington, Asst. U. S. Atty. (John Quinn, U. S. Atty., with him on the brief), for appellee.

Before HILL and SETH, Circuit Judges, and DOYLE, District Judge.

SETH, Circuit Judge.

The appellant, Billy Parson, and Stanley Staniewicz were indicted for transporting a stolen vehicle in interstate commerce from Chickasha, Oklahoma, to Santa Rosa, New Mexico, knowing it to have been stolen. Both were tried and convicted by a jury, but only Billy Parson has taken this appeal. As ground for reversal, appellant urges that certain oral statements made to police officers were improperly admitted in evidence at the trial.

The record shows that the car in question was reported to have been stolen from Chickasha, Oklahoma, in the early morning hours. The appellant and his codefendant were found sitting in the car, which was out of gas, in Santa Rosa, New Mexico. The sheriff there had received a report from a store that two strangers had tried to cash a check on a local bank, and was directed to where the defendants were parked. The sheriff took the defendants to his office, learned they were AWOL from Fort Sill, Oklahoma, and held them for military authorities which he notified. The sheriff wanted to move the car in question off the street to put it in storage. A key found in the personal effects of the appellant would not unlock the car doors nor fit the ignition. The ignition switch was the kind that if left unlocked could be turned on and off without a key. When the sheriff could not move the car he told appellant's codefendant that the key would not work, and told him that they were giving him the "runaround" about the key. Then the codefendant told the sheriff that he and appellant had stolen the car and appellant confirmed it. The sheriff told them he would not talk to them about the theft, and that an FBI agent would do so. The sheriff testified that until the defendants told him the car was stolen he believed their previous story that the car had been bought by them for $900, and had no reason to think the car was stolen.

At the trial both defendants testified that they bought the car for $250 from two men in Oklahoma City at three o'clock in the morning. The appellant testified that they gave him a handwritten bill of sale, but it was not produced at the trial.

Appellant here urges that the statements that they had stolen the car were inadmissible because the attorney for the Government erred in eliciting the testimony of the alleged admission contrary to a stipulation between the attorneys. The gist of this argument is that appellant was "surprised" by the testimony of this admission, and had he known that such testimony was to be introduced he would have moved for a preliminary hearing to determine the constitutionality of such admission. The record however shows that appellant knew of the statements, and there is no indication from the record that there was ever any agreement not to use them. The counsel for the Government denies that there was an agreement although he does admit that he told opposing counsel that he did not intend to use the statements. Notwithstanding this...