U.S. v. Analla, 91-5552

• Decision Date: 11 September 1992
• Docket Number: No. 91-5552,91-5552
• Citation: 975 F.2d 119
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Seedy Fehli ANALLA, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fourth Circuit

Page 119

975 F.2d 119

UNITED STATES of America, Plaintiff-Appellee, v. Seedy Fehli ANALLA, Defendant-Appellant.

No. 91-5552.

United States Court of Appeals, Fourth Circuit.

Argued March 6, 1992.

Decided Sept. 11, 1992.

John Dewey Elliott, Columbia, S.C., argued for defendant-appellant.

Eric William Ruschky, Asst. U.S. Atty., Columbia, S.C., argued (E. Bart Daniel, U.S. Atty., on brief), for plaintiff-appellee.

Before WIDENER and LUTTIG, Circuit Judges, and BUTZNER, Senior Circuit Judge.

OPINION

WIDENER, Circuit Judge:

Seedy Fehli Analla appeals his conviction for murder and related offenses. 18 U.S.C. §§ 1111, 113(a), 2112, 924(c). Analla also appeals his sentences, which include a sentence to life imprisonment without parole for the murder conviction. We affirm.

I

Around midnight on May 4, 1989, someone robbed the Pizza Pub at Shaw Air Force Base in Sumter, South Carolina. The assailant carried a .25 caliber handgun. He shot one employee in the back of the head, killing her. He shot the other employee, Jeannette Delia, twice in the face. Mrs. Delia survived the shooting.

According to Mrs. Delia, the Pizza Pub closed at 11:00 pm on the night of the robbery. She and Luz Dougherty remained after closing to clean up and count the money. When counting the money, it was the practice to separate the $1.00 bills into bundles of 25 and to secure each bundle with a paperclip. Around 11:50 p.m., Analla came to the back door. He told Mrs. Delia that he was from Environmental Health and that he was concerned about a pile of garbage near the dumpster. He was wearing a black leather jacket with a badge. Mrs. Dougherty cleaned up the garbage as requested. The assailant wrote a report about the incident, but Mrs. Dougherty refused to sign it and wrote her own report instead. The assailant then acted as if he were going to do an inspection of the Pizza Pub. Mrs. Delia went with him to the bathrooms. While in the bathroom, the assailant stepped on a cockroach, which Mrs. Delia then put in the trash bag. Mrs. Delia took that trash bag to the kitchen and returned with a clean one. When she returned to the bathroom, the assailant pointed out a piece of toilet paper on the floor in one of the stalls. Mrs. Delia stooped down, grabbed the toilet paper and flushed it down the toilet. The assailant shot her twice in the face and apparently left the bathroom.

Mrs. Delia crawled out of the bathroom window and went across the street to the Security Police station. When the Security Police arrived at the Pizza Pub, they found the back door unlocked. Mrs. Dougherty's body was inside. She had been shot in the back of the head.

On the night of the murder, Analla was registered at the Carolina Pines motel, about one-half mile from the Pizza Pub. The morning after the murder, Analla checked out of the Carolina Pines at 8:42 a.m. Analla drove to a convenience store called the Pantry, where he bought some gum and got 20 dollars in quarters. He then used the pay phone outside the Pantry to call his wife, Alexandra, who was in Greece.

While Analla was using the pay phone outside, Marjorie Brannon, the training manager at the Pantry, received a call on the phone inside the store. The caller mentioned the incident at the Pizza Pub and described the suspect. Although the record does not say how the caller described the suspect, the police were looking for an Hispanic male wearing a black leather jacket. Miss Brannon felt that Analla fit the description, so she asked her supervisor to call the police. Analla is not Hispanic, but he is Moroccan, and was described by Officer Parker on his arrival as "Hispanic-type looking." The record shows that a black leather jacket was later found in Analla's car. The call to the police advised them that a man fitting the Pizza Pub murderer's description was in the pay telephone booth outside the Pantry.

Two Sumter Police Department squad cars, driven by officers Parker and McCoy, responded to the call. Parker and McCoy parked their cars on either side of Analla's car at 45 degree angles to it, with McCoy's car on the driver's side of Analla's car and Parker's car on the passenger side. Analla's car was not blocked in by the squad cars.

Officer Parker approached Analla, who was still using the phone. Parker told Analla that he wanted to speak to him when he was through. Parker asked for his license and registration. Analla went to his car to get the license. Analla had a Georgia driver's license, but the car was registered in Texas to William Analla, who, Analla explained, was his brother-in-law. After getting the license from his car, Analla says he left the driver side door ajar.

Parker and McCoy stood between Analla's car and Parker's squad car while Parker used his walkie-talkie to check the license with the dispatcher. Parker testified that he would have stopped Analla had Analla attempted to drive off without his license. Parker maintained, however, that if Analla had asked to have his license returned, he would have asked Analla to "hold on for just a minute to verify the fact that it is a clear license," but would have had no choice but to return the license and permit Analla to go if Analla had persisted.

While Parker was checking Analla's license, a third officer, Sergeant Moore, arrived at the Pantry. Sergeant Moore approached Analla. Parker and McCoy still stood between Analla's car and Parker's patrol car, behind Moore. Moore told Analla that there had been a murder at Shaw Air Force Base and that Analla fit the description. Moore asked whether Analla had a weapon. Analla said no. Moore asked Analla for permission to search the car. Analla said "Go ahead." Before starting the search, Moore again asked Analla for permission to search and Analla again consented. At some point before beginning his actual search of the car, Analla testified that he saw Moore looking into the car through the open passenger door. It is not clear from Analla, however, whether this occurred before or after Analla first consented to the search. At no time did any of the officers tell Analla that he had a right to leave, to refuse to answer any questions, or to refuse the search.

The search of Analla's car revealed a .25 caliber pistol under the driver's seat. A crime lab later identified the pistol as the murder weapon. Upon finding the gun, Parker and McCoy immediately handcuffed Analla and placed him under arrest for violating a South Carolina law that requires handguns to be kept either in the glove compartment or in the trunk. Officer Parker put Analla in his squad car and advised him of his Miranda rights. After some conversation following Analla's arrest, Parker concluded from Analla's skin tone that Analla was not Hispanic.

Shortly thereafter, two FBI agents, Oyler and Younginer, arrived on the scene. They were told that the Sumter Police were holding a person who fit the description of the Pizza Pub homicide suspect. Agent Younginer again read the Miranda warnings to Analla and asked Analla if he would mind talking with them. Analla said that he did not mind. Younginer also obtained Analla's written consent to search the car.

Officer Parker and a Sumter Police evidence technician then inventoried the contents of the car. Incriminating evidence found in the car included: the .25 caliber semi-automatic pistol found under the driver's seat; cash, including two bundles of 25 $1.00 bills paperclipped together; and a black leather jacket.

Because of the confusion at the scene, the FBI agents decided to interrogate Analla elsewhere. They took him to the Sumter Police station for that purpose. No questioning occurred during the trip to the station house. At the station, the agents and Analla reviewed a form containing an advice of rights and waiver of rights. Analla signed the waiver. Analla was interviewed for about two hours, but never confessed to the crime. However, inculpatory statements obtained from the interrogation were admitted at trial. After the interrogation, Analla was booked and swabs of his hands were taken in order to test for gunshot residue. These tests later revealed that Analla recently had fired a firearm or had been close to one when it was fired, and were admitted at trial.

A suppression hearing was held at which Analla testified. At the time of the arrest, Analla was 24 years old. He was born and lived in Morocco until the age of 16. At that time, he was adopted by his brother-in-law, who was in the U.S. Air Force, and his sister so that he could attend schools for the children of U.S. military personnel. Analla attended school in Morocco, Germany, England, and the United States. He was graduated from high school in 1985 and attended at least one semester at Louisiana Tech. Although he was a native of Morocco, Analla's understanding of the English language was not an issue, and the district court so found at the suppression hearing.

Analla testified that he was scared of the police because of his childhood in Morocco. He testified that Moroccan police notoriously use torture and that he feared being tortured or shot should he refuse to answer any question asked, refuse to allow the search of his car, or try to leave the scene at any point, even at the earliest stages of his encounter with officers Parker and McCoy. He conceded, however, that the officers and agents never said or did anything suggesting torture. Instead, Analla claimed that he was intimidated by their tone of voice.

The defense moved to suppress both the fruits of the search and the statements made during the interrogation. This motion was denied. The district court found the search to be a valid consensual search. The court found no evidence in the record that the police in any way threatened Analla with physical force or abuse or in any way implied that they would use force should Analla refuse to allow the search. The court also found that, in spite of his Moroccan origin, "[g]iven the characteristics of...