U.S. v. Alderdyce, 85-3042

• Decision Date: 23 April 1986
• Docket Number: No. 85-3042,85-3042
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Daniel Raymond ALDERDYCE, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1365

787 F.2d 1365

UNITED STATES of America, Plaintiff-Appellee, v. Daniel Raymond ALDERDYCE, Defendant-Appellant.

No. 85-3042.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Jan. 7, 1986.

Decided April 23, 1986.

William Youngman, Asst. U.S. Atty., Portland, Or., for plaintiff-appellee.

Hollis McMilan, Asst. Federal Public Defender, Portland, Or., for defendant-appellant.

Appeal from the United States District Court for the District of Oregon.

Before SKOPIL, NELSON, and BOOCHEVER, Circuit Judges.

SKOPIL, Circuit Judge:

This is an appeal from judgments of conviction on one count of assault with intent to commit rape in violation of 18 U.S.C. Sec. 113(a), one count of rape in violation of 18 U.S.C. Sec. 2031, and one count of sodomy in violation of 18 U.S.C. Sec. 13 and O.R.S. Sec. 163.405. We affirm.

FACTS AND PROCEEDINGS BELOW

On December 7, 1984 appellant Alderdyce was visiting a friend, JK, in Salem. JK asked Alderdyce to give his friends, PC, BS, and MG, a ride to a local park where they were to meet some girls. The girls, JO, the complaining witness, DC, DA, and CTB, were from the Chemawa Indian School. Alderdyce drove PC and his friends to the park.

While at the park PC, BS, and MG invited the girls back to JK's house. MC and JK arrived a short time later. The group listened to music and continued drinking. Alderdyce and JK left. Alderdyce returned approximately an hour later.

At some point, three of the girls left the party and went back to the school. JO, the complaining witness, who remained at JK's house, was intoxicated. She eventually became sick and passed out in a bedroom. There is conflicting testimony as to what occurred at that point.

MG testified that he alone entered the bedroom to try to rouse JO. MC claimed that Alderdyce went into the bedroom and that PC and MG found him "making a pass" at JO. MC claimed he also tried to rouse JO. PC, MC, and MG all testified that they did not have intercourse with JO and knew of no one who did.

Alderdyce testified that when he arrived back at the house none of the girls were in view. At that point he asked MC what was going on. MC allegedly replied that they were "pulling a train," i.e., having sexual intercourse, on the girl in the bedroom. Alderdyce said he was disgusted by this and pulled back a blanket covering the bedroom door. He claimed it was too dark to see, but that someone told him to get out. Alderdyce left and sat in the living room. One of the men then emerged from the bedroom with JO. Thereafter, PC, MG, BS, and MC dropped JO off at the Navajo Trail, which leads to the school dormatories. Alderdyce followed the group to the trail. It is unclear whether the men noticed Alderdyce at that time. In any event JO testified that Alderdyce came up behind her and pushed her to the ground. He then pinned her and threatened to kill her if she did not keep quiet. She claims Alderdyce raped and sodomized her. The temperature was about thirty-three degrees that evening. Alderdyce claims he offered to help JO down the trail because she appeared unsteady. Alderdyce, a former member of Alcoholics Anonymous, claimed he chastised her for drinking. Alderdyce admitted to having five or six drinks that night. Alderdyce also claims he asked JO why she let the others have intercourse with her. She allegedly responded by asking him if he wanted to "get laid." He said no. When she began fondling him, however, Alderdyce claims he submitted against his better judgment. He denies having intercourse or oral sex with JO.

PC left JO at the trail and drove BS home. What occurred next is disputed.

After PC, MG, and MC drove BS home, they noticed Alderdyce's car parked at the head of the trail. A resident living near the trail also noticed Alderdyce's car, although he heard no commotion. The men eventually walked down the trail. Off the side of the trail they found Alderdyce lying on top of JO with his midsection over her face and his head between her legs. They continued down the trial to discuss what to do. They decided to go back and apprehend Alderdyce.

MC kicked Alderdyce off JO. JO then pulled up her pants, claimed she had been raped, and ran down the trail. MC testified that at that point Alderdyce said, "Don't listen to her, all women say that." Alderdyce then ran up the hill and drove away, hitting a parked car in the process. Two residents in the area observed the defendant driving away and hitting the parked car. Alderdyce claims he ran away because he was afraid of being beaten up.

PC took JO to her dormitory and reported the rape. She was then taken to a hospital and examined. PC, MC, and MG then met a school security officer at the trail and identified the spot where they found Alderdyce and JO. Alderdyce's identification was located on the trail.

The police found Alderdyce hiding in the bathroom at his brother's apartment in Salem. He had no identification and claimed to have lost it in Eugene. Alderdyce was arrested, read his rights, and taken to the Marion County Jail. A few hours later, Bureau of Indian Affairs Agent Hamby arrived to question Alderdyce. The Chemewa School security guard was also present. Alderdyce was advised orally and in writing of his Miranda rights. He indicated he understood his rights, but declined to sign the waiver form. Hamby then asked Alderdyce what he had done the previous evening. Alderdyce claimed he had been at a party and had loaned a friend his car. He did not remember the name of his friend or what he looked like, nor had he heard from his friend since. Alderdyce's motion in limine to exclude statements made following his refusal to execute the waiver was denied.

On December 10, 1984 Alderdyce was taken before a magistrate for a first appearance. Following a hearing, the magistrate found probable cause to believe Alderdyce had committed the offense of rape and ordered the case continued for arraignment. On December 18, 1984 an indictment was returned charging Alderdyce with rape and assault with intent to commit rape. He was arraigned on that indictment. A superseding indictment was filed on January 23, 1985. Alderdyce was arraigned on this indictment at a pretrial conference on February 4, 1985.

On December 13, 1984 the defendant subpoenaed hospital records of the examination of JO from the Salem Memorial Hospital. The hospital records were apparently incomplete and indicated that no sperm had been found during the examination of JO. About a week prior to trial, the Assistant United States Attorney informed defense counsel that a pap smear had been performed, the results of which were not available until sometime after the defendant had subpoenaed the hospital records. That test indicated the presence of motile Defense counsel filed a motion to dismiss based on alleged Brady violations by the government. The court denied the motion, but granted a continuance to allow scientific testing to be performed on the underpants. Blood tests indicated that JO and Alderdyce were Type A and the seminal fluid was Type A. Enzyme tests, however, were inconclusive.

sperm. The government claims defense counsel was informed of this fact as soon as it was learned. Defense counsel then made arrangements to have Alderdyce's clothing examined for the presence of sperm. The United States Attorney also requested that JO's underpants, which had been held as evidence, be examined for the presence of sperm. Seminal fluid was found on JO's underpants. No sperm was found on Alderdyce's clothing.

Defense counsel also reviewed the "rape kit" prepared during the examination of JO. The kit contained a checklist of procedures to be performed. One of those procedures was a swabbing of the vaginal tract. The swabs were not part of the kit in this case. The box indicating that the procedure had been done was not checked off. It is unclear whether the swabbing was not done, or whether the swabs taken from the vaginal area were lost or discarded. Defendant renewed his motion to dismiss, or alternatively for a mistrial, at various points throughout the proceedings. These motions were denied without any factual findings.

On February 27, 1985 the jury returned verdicts of guilty on all counts. Alderdyce was sentenced to serve a period of eight years in the custody of the Attorney General on each count, the sentences to run concurrently. Alderdyce timely appealed the judgments of conviction.

DISCUSSION

A. Miranda Issue.

A finding that a defendant knowingly and voluntarily waived his Miranda rights will be reversed only if it is clearly erroneous. United States v. Doe, 764 F.2d 695, 697 (9th Cir.1985). Whether a waiver of rights is voluntary, knowing, and intelligent depends on the totality of circumstances, including the background, experience, and conduct of the defendant. North Carolina v. Butler, 441 U.S. 369, 374-75, 99 S.Ct. 1755, 1757-58, 60 L.Ed.2d 286 (1979) (citing Johnson v. Zerbst, 304 U.S. 458, 464, 58 S.Ct. 1019, 1023, 82 L.Ed. 1461 (1938)). A signed waiver form is one factor to be considered. United States v. Binder, 769 F.2d 595, 599 (9th Cir.1985); see also United States v. Nick, 604 F.2d 1199, 1201 (9th Cir.1979). The prosecution has the burden of showing a valid waiver. There is a presumption against a waiver. Butler, 441 U.S. at 373, 99 S.Ct. at 1757.

Relying on United States v. Heldt, 745 F.2d 1275 (9th Cir.1984), defendant contends that his refusal to execute a waiver of rights form was an assertion of his right to remain silent which was not honored when the agent questioned him about his whereabouts the previous evening. In Heldt, this court held that a refusal to sign a waiver form "casts initial doubt on any claim that [defendant] waived his Miranda right." Id. at 1277. This court further recognized that "[u]nder some circumstances, declining to sign a Miranda waiver form will be an assertion of the right to silence...." Id. at 1278 (quoting United States v. Boyce, 594 F.2d 1246,...