Tucker v. United States, 18532.

• Decision Date: 19 April 1967
• Docket Number: No. 18532.,18532.
• Citation: 375 F.2d 363
• Parties: Benjamin George TUCKER, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

375 F.2d 363 (1967)

Benjamin George TUCKER, Appellant, v. UNITED STATES of America, Appellee.

No. 18532.

United States Court of Appeals Eighth Circuit.

March 23, 1967.

Rehearing Denied April 19, 1967.

COPYRIGHT MATERIAL OMITTED

Lloyd E. Humphreys, Cedar Rapids, Iowa, for appellant and filed typewritten brief.

Charles W. Ehrhardt, Asst. U. S. Atty., Sioux City, Iowa, for appellee. Donald E. O'Brien, U. S. Atty., Sioux City, Iowa, was with him on the brief.

Before MATTHES, LAY and HEANEY, Circuit Judges.

MATTHES, Circuit Judge.

Pursuant to a waiver of prosecution by indictment, duly executed by Benjamin George Tucker and his attorney, Tucker was prosecuted under an information and convicted by a jury of violating 18 U.S.C. § 2312 (1948), commonly known as the "Dyer Act."¹ We hereinafter refer to Tucker as defendant, or by name.

The district court, Honorable Edward J. McManus, sentenced the defendant pursuant to the provisions of the Federal Youth Corrections Act, 18 U.S.C. §§ 5005-5024 (1950), as amended, 18 U.S.C. §§ 5005-5026 (Supp.1966). This appeal followed.

There is no controversy as to the actual commission of the offense. The Government established by undisputed evidence that a 1965 F-85 Oldsmobile, the property of John Flynn of Dubuque, Iowa, was unlawfully taken from the front of Flynn's home sometime between 9:30 P.M., July 9, 1966 and 1:30 A.M., July 10th. The automobile was transported from Dubuque, Iowa to Memphis, Tennessee, and was found abandoned two or three blocks from the rooming house in which Tucker and his accomplice, James Murphy, had stayed. Although defendant testified in his own behalf he made no attempt to deny commission of the offense.² Tucker also unsuccessfully attempted to establish an alibi to the effect that he was playing cards at the home of a friend at the time the automobile was stolen.

Defendant's principal ground for reversal is the claimed erroneous admission into evidence of certain incriminating statements made by him to law enforcement officials following his arrest and detention on July 14th in Tupelo, Mississippi on a vagrancy charge. Although defendant tacitly concedes on appeal that the warning given at the outset of the in-custody interrogation complied with the guidelines established in Miranda v. State of Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (June 13, 1966),³ he nevertheless contends that he did not unequivocally articulate a waiver of his right against self-incrimination. Additionally, he asserts that it was essential that investigating officers advise him of his full complement of rights, as announced in Miranda, prior to each and every interrogation.

The Supreme Court in Miranda dealt with "the admissibility of statements obtained from a defendant questioned while in custody or otherwise deprived of his freedom of action." The prosecution may not use inculpatory statements emanating from the custodial interrogation of the accused, "unless it demonstrates the use of procedural safeguards effective to secure the privilege against self-incrimination." 384 U.S. at 444, 86 S. Ct. at 1612.

The Supreme Court clearly delineated guidelines which were devised to inform an accused person of his right to remain silent and to assure the accused a continuous opportunity to exercise that right.

Prior to any interrogation the accused must be warned "that he has a right to remain silent, that any statement he does make may be used as evidence against him, and that he has a right to the presence of an attorney, either retained or appointed." The defendant, however, may effectively waive his exercise of these rights, provided the waiver is made "voluntarily, knowingly and intelligently." Furthermore, if the accused indicates in any manner at any stage of the interrogation process that he desires to consult with counsel prior to making a statement or suggests in any manner that he does not wish to be interrogated, the police may no longer attempt to question him. 384 U.S. at 445, 86 S.Ct. 1602.

Of particular significance in addition to the safeguards themselves is the fact that they must be articulated by the interrogating officer "prior to any questioning" or "at the outset of the interrogation process." 384 U.S. at 445, 86 S.Ct. at 1612. Westover v. United States, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), a companion case to Miranda, reveals that a confession obtained by one authority after proper warning may be invalid and inadmissible for failure of the first interrogating authority to timely and fully advise the person in custody of his constitutional right against self-incrimination. See also Evans v. United States, 375 F.2d 355 (8th Cir., March 22, 1967), where we dealt with the same question. The timeliness of the warning therefore may be as important as the warning itself.

The defendant in this case admitted his participation in the crime to two law enforcement officials on two separate occasions. The issue concerning the admissibility of his incriminating statements in the trial was raised initially by a motion to suppress. At the outset of the trial Judge McManus, in accordance with the rule promulgated in Jackson v. Denno, 378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed. 2d 908 (1963), conducted a plenary hearing out of the presence of the jury to determine the voluntariness of the incriminating statements and their admissibility into evidence in light of Miranda. Following the voir dire hearing, the court made a finding that the warnings given to the defendant by the investigating officers comported with the constitutional standards established by Miranda, that the defendant had waived his rights, and that his incriminating statements were therefore admissible.

On the record before us, we believe the trial judge fully and independently resolved the Miranda issue against the defendant, as he was required to do under Jackson v. Denno, supra. The procedures outlined in that case clearly require an independent determination of the Miranda issue by the court prior to any reconsideration of the issue by the jury. Evans v. United States, supra.

After resolving the issue of voluntariness and waiver, the court announced, pursuant to a request from defendant's counsel, that evidence relating to the circumstances under which the confessions were obtained would be submitted to the jury. The court was apparently motivated to pursue this course of action for the reason that the defendant had denied in the voir dire hearing that he had been fully advised of his constitutional rights. The announced procedure was followed. The same evidence before the court in the voir dire hearing was presented to the jury, except for the fact that the defendant confined his testimony before the jury to a denial that Sam Allen had ever appropriately advised him as to his rights. The question was then submitted to the jury by an instruction.

Defendant asserts error in submitting the issue of the sufficiency of the Miranda warnings and the defendant's purported waiver of his rights to the same jury that was to hear independent evidence as to the defendant's guilt. We have difficulty in reconciling this contention with the position adopted by defendant during the trial of the case. The court entertained some doubt as to whether the questions of constitutional warnings and waiver should be developed before and submitted to the jury. There can be little doubt, however, as to defendant's attitude in regard to these matters. His counsel not only failed to object to the submission of these questions, but clearly invited the procedure which he now condemns. In fact, counsel for defendant offered an instruction dealing with all aspects of the Miranda warnings and waiver. It was refused solely for the reason that the court felt, as we do, that its instruction fully covered this phase of the case. As thus posited, we do not regard defendant's present complaint as meritorious:

"Where parties, even in a criminal case, knowingly and deliberately adopt a course of procedure which at the time appears to be to their best interest, they cannot be permitted at a later time, after a decision has been rendered adverse to them, to obtain a retrial according to procedure which they have fully discarded and waived." Carruthers v. Reed, 102 F.2d 933, 938 (8th Cir. 1939), cert. denied, 307 U.S. 643, 59 S.Ct. 1047, 83 L.Ed. 1523 (1939). Cf. Larson v. United States, 275 F.2d 673, 679 (5th Cir. 1960), cert. denied, 363 U.S. 849, 80 S.Ct. 1627, 4 L.Ed.2d 1732 (1960).

As we understand Jackson v. Denno, after the court has made its initial determination that the confession has been voluntarily made, and therefore constitutes admissible evidence, it need not submit that question to the jury for its determination and can exclude from their consideration evidence relating to that issue. We fail, however, to perceive how the defendant was prejudiced by the procedure that was followed — a course which he himself invited, apparently in the hope that the jury would be more responsive to his appeal. More important, however, is the fact that we do not read Jackson v. Denno as condemning this practice. On the contrary, the Supreme Court intimates that submission of the voluntariness issue to the jury rests within the discretion of the trial court:

"In jurisdictions following the orthodox rule, under which the judge himself solely and finally determines the voluntariness of the confession, or those following the Massachusetts procedure, under which the jury passes on voluntariness only after the judge has fully and independently resolved the issue against the accused, the judge\'s conclusions are clearly evident from the record since he either admits the confession into evidence if it is voluntary or rejects it if involuntary." 378 U.S. at 378-379, 84 S.Ct. at 1781⁴

We turn now to the evidence bearing upon the question of the admissibility of defendant's incriminating statements. Between 5:30 and...