U.S. v. Bear Killer

• Decision Date: 13 May 1976
• Docket Number: No. 75-1814,75-1814
• Citation: 534 F.2d 1253
• Parties: UNITED STATES of America, Appellee, v. Ralph BEAR KILLER, Jr., Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 1253

534 F.2d 1253

UNITED STATES of America, Appellee, v. Ralph BEAR KILLER, Jr., Appellant.

No. 75-1814.

United States Court of Appeals,

Eighth Circuit.

Submitted Feb. 12, 1976.

Decided April 16, 1976.

Rehearing and Rehearing En Banc Denied May 13, 1976.

Edward C. Carpenter, Rapid City, S. D., for appellant.

Gary Annear, Asst. U. S. Atty., Fargo, N. D., for appellee; William F. Clayton, U. S. Atty., Sioux Falls, S. D., on brief.

Before LAY, HEANEY and STEPHENSON, Circuit Judges.

HEANEY, Circuit Judge.

Ralph Charles Bear Killer, Jr., an Indian, was charged by indictment with second-degree murder in violation of 18 U.S.C §§ 1153 and 1111. He appeals from a judgment of conviction based upon a jury verdict of guilty to the lesser included offense of involuntary manslaughter.

The appellant assigns as error the admission in evidence of two in-custody statements. He argues that the statements should have been suppressed because the government delayed unreasonably in bringing him before a magistrate contrary to 18 U.S.C. § 3501(c) ¹ and Federal Rule of Criminal Procedure 5(a). ² The District Court found the statements to be voluntary and the delay reasonable.

We outline the pertinent facts. In the early morning hours of July 9, 1975, at the Allen, South Dakota, housing district on the Pine Ridge Indian Reservation, Vincent DuBray died from a gunshot wound. At 5:18 A.M. of the same day, Bear Killer and two other suspects of the shooting death, Donald Tallman and Harlan Garnett, were arrested by officers of the Bureau of Indian Affairs. The appellant's arrest was perfected without a warrant. He was charged with the tribal offense of disorderly conduct and detained in the Pine Ridge Jail.

Later that morning, about 6:00 A.M., the Federal Bureau of Investigation was advised of DuBray's death. By 9:00 A.M., a preliminary investigation, including an interview with an eyewitness to the shooting, Bernadine Scout, had been completed. Scout stated that the appellant had shot DuBray. Bear Killer was not interviewed at that hour because of his intoxicated condition.

The suspects were interviewed that afternoon. Garnett, the first to be questioned, implicated the appellant as the perpetrator of the crime. Bear Killer was then given Miranda warnings and questioned. He denied complicity in the crime. The interview, which lasted approximately twenty-four minutes, was completed by 2:55 P.M. Immediately thereafter, the F.B.I. was authorized by an Assistant United States Attorney to charge Bear Killer with the killing.

The F.B.I. then transported the appellant to Rapid City, South Dakota, a distance of approximately one hundred miles. Upon their arrival at 5:25 P.M., too late for presentment to a magistrate, Bear Killer said: "I suppose you want to know why I shot him?" The F.B.I. again issued Miranda warnings, and Bear Killer gave a second statement implicating him in the shooting death of DuBray. This second interview was completed by 5:48 P.M.

In United States v. Keeble, 459 F.2d 757 (8th Cir. 1972), rev'd on other grounds, 412 U.S. 205, 93 S.Ct. 1993, 36 L.Ed.2d 844 (1973), we held that the critical inquiry into the admissibility of in-custody statements is whether, in the light of all the circumstances, they were voluntary. The delay between arrest and confession is a factor that must be considered in this inquiry. But a delay alone will not render a confession inadmissible. Notwithstanding the urgings of the appellant, we continue to adhere to Keeble. ³ Accord, United States v. McCormick, 468 F.2d 68 (10th Cir. 1972), cert. denied, 410 U.S. 927, 93 S.Ct. 1361, 35 L.Ed.2d 588 (1973); United States v. Halbert, 436 F.2d 1226 (9th Cir. 1970). In so doing, we repeat the Supreme Court's admonition that the simple fact of custody is coercive. ⁴ It is a subtle form of pressure that plays against the will of a suspect, the effects of which are most difficult to measure. Accordingly, the reasons for delay must be carefully scrutinized. A statement given while in custody is not admissible if it is the product of an improper encroachment on the right to an initial appearance before a magistrate. See United States v. Keeble, supra at 761. As noted by the Supreme Court:

(O)rdinarily there is no need for further investigation before the probable cause determination can be made.

"Presumably, whomever the police arrest they must arrest on 'probable cause.' It is not the function of the police to arrest, as it were, at large and use an interrogating process at police headquarters in order to determine whom they should charge before a committing magistrate on 'probable cause.' " Mallory v. United States, 354 U.S. 449, 456, 77 S.Ct. 1356, 1360, 1 L.Ed.2d 1479 (1957).

Gerstein v. Pugh, 420 U.S. 103, 120, 95 S.Ct. 854, 866, 43 L.Ed.2d 54, 69 n. 21 (1975). ⁵

Bear Killer was advised of his rights under Miranda before each interrogation, he was aware of the nature of the offense under investigation, he was denied neither sleep nor food, and the questioning was neither of an oppressive nor a harassing nature. Moreover, the delay did not result from F.B.I. attempts to coerce the appellant to incriminate himself. Rather, it resulted from compliance with the local practice of permitting intoxicated arrestees to become sober before questioning and presentment to a magistrate and from the fact that approximately one hundred miles had to be traveled before a magistrate could be obtained.

The District Court considered the totality of the circumstances, including the fact of delay and the reasons for the delay. It found the delay to be reasonable and the in-custody statements to be voluntary. These findings are not clearly erroneous. United States v. Thomas, 521 F.2d 76, 79 (8th Cir. 1975); United States v. Delay, 500 F.2d 1360, 1365 (8th Cir. 1974).

Bear Killer also argues that the District Court erred in giving the following instruction relative to the jury's consideration of the appellant's in-custody statements:

The Court instructs you that it has found that the statement made by the defendant at the time of his arrest was voluntary and based upon the Court's finding the Government witnesses were permitted to testify as to certain statements which the defendant was alleged to have made. However, it is for the jury to determine the credibility and weight to be given to such statements with respect to the defendant's innocence or guilt.

He objects specifically to that portion of the instruction which informs the jury that the in-custody statements were found to be voluntary. ⁶ The instruction is based upon United States v. Adams, 484 F.2d 357 (7th Cir. 1973). ⁷ We agree with the appellant that the instruction is erroneous but decline to reverse the conviction.

The District Court's instruction operates to limit the factual inquiry of the jury contrary to the statutory command of 18 U.S.C. § 3501(a). That statute states in relevant part:

If the trial judge determines that the confession was voluntarily made it shall be admitted in evidence and the trial judge shall permit the jury to hear relevant evidence on the issue of voluntariness and shall instruct the jury to give such weight to the confession as the jury feels it deserves under all the circumstances.

The instruction, which informs the jury that in-custody statements are in law and in fact voluntary, renders superfluous any evidence relative to the conditions under which the statements were given. It makes impossible, as a general rule, the fulfillment of the jury's duty to give the statements such weight as they deserve under all of the circumstances. The presence of duress in the procurement of in-custody statements is clearly relevant to their reliability. See Lego v. Twomey, 404 U.S. 477, 484-486, 92 S.Ct. 619, 624-625, 30 L.Ed.2d 618, 624-625 (1972). We agree with the observations made by the Second Circuit in construing 18 U.S.C. § 3501(a): ⁸

In short, Congress's unmistakable intent to provide adequate protection against the use of coerced confessions clearly included a desire that the jury play a part in weighing the evidence of duress.

We would be acting contrary both to the language of the statute and to the intent of Congress were we to exclude the issue of fairness in securing the confession, independently of its reliability, from the ambit of jury consideration.

United States v. Barry, 518 F.2d 342, 347, 348 (2nd Cir. 1975).

Moreover, irrespective of the statutory command, fairness requires that the court not disclose to the jury its finding of voluntariness. See United States v. Harper, 432 F.2d 100, 102 (5th Cir. 1970); Ellis v. Fitzharris, 407 F.2d 799, 803 n. 8 (9th Cir. 1969); United States v. Fayette, 388 F.2d 728, 736 (2nd Cir. 1968). Disclosure places upon the in-custody statements the imprimatur of the court which, it must be presumed, influences the jury. See Lego v. Twomey, supra 404 U.S. at 483-484, 92 S.Ct. at 623-624, 30 L.Ed.2d at 623-624.

The determination of the admissibility of in-custody statements turns upon their voluntariness. The court, in the suppression hearing, is concerned solely with the vindication of the constitutional right. Indeed, it is error for the court to consider, in any degree, the reliability of the confession. Id. 404 U.S. at 484 n. 12, 92 S.Ct. at 624, 30 L.Ed.2d at 624; Hutcherson v. United States, 122 U.S.App.D.C. 51, 351 F.2d 748, 755 (1965). Hence, the instruction which discloses the court's finding of voluntariness not only improperly influences the jury in its determination of guilt or innocence, but does so when the reliability of the in-custody statements was irrelevant to the court's finding and not determined by it. Moreover, the government's burden of proving guilt beyond a reasonable doubt under In re Winship, 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970), is lightened to the extent that the jury accepts the in-custody statements as truthful because of the court's determination, made upon a...