U.S. v. Barfield, s. 74-2252

• Decision Date: 24 January 1975
• Docket Number: 74-2616,74-2487,Nos. 74-2252,s. 74-2252
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. George Leo BARFIELD, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. William James RYBKA, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. William Donny HALES, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 53

507 F.2d 53

UNITED STATES of America, Plaintiff-Appellee, v. George Leo BARFIELD, Defendant-Appellant.

UNITED STATES of America, Plaintiff-Appellee, v. William James RYBKA, Defendant-Appellant.

UNITED STATES of America, Plaintiff-Appellee, v. William Donny HALES, Defendant-Appellant.

Nos. 74-2252, 74-2487, 74-2616.

United States Court of Appeals, Fifth Circuit.

Jan. 24, 1975, Certiorari Denied April 28, 1975, See 95

S.Ct. 1684.

Joseph F. McDermott, St. Petersburg, Fla., John T. Blakely, Clearwater, Fla., Oscar Blasingame, St. Petersburg, Fla. (court-appointed), for defendants-appellants.

John L. Briggs, U.S. Atty., D. Frank Winkles, Asst. U.S. Atty., Jacksonville, Fla., Claude H. Tison, Jr., John Lund, Asst. U.S. Attys., Tampa, Fla., for plaintiff-appellee.

Appeals from the United States District Court for the Middle District of Florida.

Before RIVES, WISDOM and COLEMAN, Circuit Judges.

COLEMAN, Circuit Judge.

George Lee Barfield, William Hales, and William James Rybka, Juveniles, were found guilty of burglarizing the Barnett Bank of Auburndale, Florida. Adjudicated juvenile delinquents, they were committed to the custody of the Attorney General for the duration of their minority, 18 U.S.C. 5031 et seq.

We note at the outset that the evidence of the guilt of these appellants was overwhelming. Nevertheless, Barfield and Rybka appeal on the ground that the District Judge, who sat without a jury, admitted into evidence statements obtained from them, they say, in violation of their Fifth Amendment privilege against self incrimination. Hales says that his Fourth Amendment rights were violated by an F.B.I. search, that he was made the victim of the testimony of an incompetent witness, and that his conviction was based upon erroneous findings of fact.

The cases were argued together and we affirm the Judgments of the District Court.

I. THE EVIDENCE

The Bank was burglarized on November 17, 1973. A glass panel next to the back door was smashed, several teller boxes were broken open, and coins to the amount of $1184.14 were taken.

John Hales was a brother of defendant, William. On the evening of the burglary, he heard all three defendants discussing plans to break into the Bank. This conversation took place at the Hales residence, about 100 yards from the Bank. Two of the three left and walked toward the Bank. Some time later they returned to the house. Immediately a second trip was made in the direction of the Bank. The two defendants who made that trip returned with a white bag, which they placed under some bushes. Later in the night, John Hales drove all three of the defendants to the residence of one Stephanie Brightwell. There, the coins were dumped on the floor of the living room, sorted, and counted.

Stephanie testified that all three defendants and John Hales did come to her house one night during November, 1973. She was a most reluctant witness, frequently retreating within the walls of 'I don't know', but she nevertheless said that the defendants did bring 'a lot of change' to her house and that they did count and sort it. Stephanie further testified, over objection, that Barfield said that the defendants should have used stockings or should have covered their faces with stockings.

Kenneth Tripp testified that Barfield lived with his family. On the day following the Barnett Bank burglary, Barfield told the Tripp brothers that he, together with Hales and Rybka, had robbed the Barnett Bank by breaking into the back door and prying open a cash deposit box. Barfield then took the Tripp brothers to a place near a railroad track, where some of the money was hidden. Barfield there displayed a lot of change in a canvas sack. This bag contained lettering, 'Barnett Bank'. The Tripp brothers and Barfield took the money to Dade City where they changed it into paper money. Barfield gave Jerry Tripp $100 of the money. The District Court admitted Tripp's testimony only as to the defendant Barfield.

Jerry Tripp corroborated Kenneth's testimony, again admitted only as to Barfield.

Some three or four weeks after the burglary, one Jesse Clem overheard a conversation in which Barfield participated. Something was said about the Bank and subsequently Barfield told Clem not to repeat what he had heard. This evidence was admitted as to Barfield alone.

Acting on information supplied by Barfield, F.B.I. agents obtained a search warrant and searched a small building at the Hales residence, where they found several coin wrappers, a Barnett Bank envelope, and five Canadian nickels.

Additionally, all three defendants confessed their participation in the burglary, but only the confessions of Barfield and Rybka were admitted in evidence.

II. RYBKA'S APPEAL

As already stated, Rybka argues that the confession he gave to the F.B.I. agents was obtained in violation of his Fifth Amendment privilege against self incrimination. Rybka was 16 years old. He was questioned by F.B.I. Special Agent Gamber, who was accompanied by Special Agent Roberts. The questioning took place at the Rybka home in the presence of his mother.

Upon arrival at the Rybka residence, the agents identified themselves and handed the juvenile a form advising him of his rights, containing the customary Miranda warning. Rybka read a part of the warning aloud. He was then instructed to read its entire contents, whereupon he told the agents that he understood the warning but agreed to answer questions anyway. He signed the customary waiver form.

Rybka at first denied any part in the bank burglary but very quickly thereafter admitted his participation. This admission, however, was made after Agent Gamber had told Rybka that it would be in his 'best interest' to tell the 'real story' and that telling a lie might result in his being left 'holding the bag'.

Rybka testified that Agent Gamber had told him that 'it will be a hell of a lot easier if you own up to it' and that if he (Rybka) did 'own up to it', he might get off on probation. Rybka claimed that he had been questioned for at least 5 minutes before receiving the Miranda warning. The District Court credited the agent's version of the interrogation.

The issue is whether telling Rybka that (1) it would be in 'his best interest' to tell the 'real story' and (2) that telling a lie might result in his being left 'holding the bag' foreclosed, as a matter of law, the voluntariness of his confession.

Rybka says that he was offered an inducement to incriminate himself, that some hope of reward was held out to him and that even the slightest inducement is prohibited, citing Bram v. United States, 168 U.S. 532, 18 S.Ct. 183, 42 L.Ed. 568 (1897).

In Bram, Mr. Justice (later Chief Justice) White quoted with approval the following language from 3 Russell on Crime 478 (6th ed.).

'But a confession, in order to be admissible, must be free and voluntary; that is, must not be extracted by any sort of threats or violence, nor obtained by any direct or implied promises, however slight, nor by the exertion of any improper influence . . .. A confession can never be received in evidence where the prisoner has been influenced by any threat or promise; for the law cannot measure the force of the influence used, or decide upon its effect upon the mind of the prisoner, and therefore excludes the declaration if any degree of influence has been exerted.' 168 U.S. at 542, 543, 18 S.Ct. at 187.

At a later point (168 U.S. at 549, 18 S.Ct. 183) the opinion stated that whether a confession is voluntary is primarily one of fact, and therefore every case must depend upon its own proof.

Undoubtedly, there may be circumstances when an admonition to the accused to tell the truth may render a subsequent statement inadmissible but it is now clearly the law that ordinarily such an admonition does not furnish sufficient inducement to render objectionable a confession thereby obtained unless threats or promises are brought into play, Martin v. United States, 4 Cir., 1948, 166 F.2d 76.

In Rivers v. United States, 5 Cir., 1968, 400 F.2d 935, a government agent was interviewing a suspect. He displayed a statute (18 U.S.C., Section 1001) dealing with the penalties for making a false statement. We held that there was no Fifth Amendment infirmity in this warning to tell the truth:

'This use of 1001 merely emphasized that if Appellant was going to say anything, he had best tell the truth. No one made any intimation that Appellant had a duty to speak or that the statute placed such a duty upon him. Nothing in the statute was used as a coercive instrument to get Appellant to talk or confess. With Miranda awareness of his rights to remain silent, to have counsel, and his willingness to talk, he had no...