U.S. v. Demarce

• Decision Date: 30 April 2009
• Docket Number: No. 08-2026.,08-2026.
• Citation: 564 F.3d 989
• Parties: UNITED STATES of America, Appellee, v. Joseph DeMARCE, Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

564 F.3d 989

UNITED STATES of America, Appellee, v. Joseph DeMARCE, Appellant.

No. 08-2026.

United States Court of Appeals, Eighth Circuit.

Submitted: February 11, 2009.

Filed: April 30, 2009.

Christopher J. Lancaster, AFPD, argued, Fargo, ND, for appellant.

Janice Mae Morley, AUSA, argued, Fargo, ND, for appellee.

Before LOKEN, Chief Judge, MELLOY and BENTON, Circuit Judges.

BENTON, Circuit Judge.

A jury convicted Joseph C. DeMarce of attempted aggravated sexual abuse and attempted sexual abuse of a minor, 18 U.S.C. § 2241(a), (c). The district court imposed a sentence of 360 months, the statutory minimum under the Adam Walsh Child Protection and Safety Act of 2006. DeMarce appeals, alleging trial and sentencing error. Jurisdiction being proper under 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a), this court affirms.

I.

On June 27, 2007, Joseph DeMarce visited his brother's home on the Spirit Lake Reservation. Around 4:00 am, he left the residence with his 11-year-old niece, D.D., in his brother's truck. They drove to the pow-wow grounds where DeMarce got into the back seat with D.D., and tried to kiss her. She pushed him away. He pushed her down on her back, and placed his hands on her stomach and legs. He pulled her shorts and underwear down to her knees. She pushed him away, sat up, and pulled up her shorts and underwear. DeMarce then grabbed her arms, and hit her in the face about 10 times. He pulled her shorts down again. D.D. pulled them up a second time. She screamed; DeMarce "snapped out of it." He drove her home, told her that he was "really sorry," and "was going to go to jail for a very long time." After dropping her off, DeMarce turned himself in to the Lake Region Law Enforcement Center (LRLEC).

At home, D.D. woke her mother to explain the blood on her face. She initially fabricated a story about how she tripped and hit her lip. Minutes later, she told her mother what really happened.

The same day, agents Wind and Thompson of the FBI visited DeMarce at the LRLEC. They advised him of his Miranda rights. After an initial question about the incident with his niece, DeMarce said, "You know, I don't want to talk to you. I'm not going to sign nothing," and walked out of the room. Questioning ceased immediately.

On July 6, the agents returned. Agent Wind asked DeMarce if he "was ready to talk." DeMarce responded by asking what charges were being brought against him. The agents told him about the charges. After being read his Miranda rights, he admitted, "I was trying to rape my niece." DeMarce, however, claims he initially told the agents that he still did not want to talk about the incident because he "wanted to forget it" and "was a monster." He alleges he made the admission only after agent Wind told him that he would have to talk about the incident eventually, and "people make mistakes."

II.

DeMarce argues that the district court committed trial error by: 1) denying his motion to suppress incriminating statements; 2) admitting hearsay testimony; 3) denying the motion for judgment of acquittal; and 4) failing to submit a jury instruction.

A.

DeMarce contends that his statements to the agents should be suppressed as a violation of his Fifth Amendment right to remain silent. On appeal from the denial of a motion to suppress, this court reviews a district court's findings of facts for clear error and its legal conclusions de novo. United States v. Bell, 480 F.3d 860, 863 (8th Cir.2007); United States v. Plumman, 409 F.3d 919, 924 (8th Cir.2005). An order denying suppression may be reversed if it is "unsupported by substantial evidence, reflects an erroneous view of the applicable law, or leaves [the court] with a firm and definite conviction that in light of the whole record a mistake has been made." United States v. Briones, 390 F.3d 610, 612 (8th Cir.2004). Whether a person invoked his right to remain silent is a factual question for the district court, reviewed for clear error. United States v Ferrer-Montoya, 483 F.3d 565, 569 (8th Cir.2007).

DeMarce argues that he invoked his right to remain silent at the June 27 interrogation. "A suspect invokes his right to remain silent by making `a clear, consistent expression of a desire to remain silent.'" Id., citing United States v. Thompson, 866 F.2d 268, 272 (8th Cir. 1989). "Being evasive and reluctant to talk is different from invoking one's right to remain silent." Ferrer-Montoya, 483 F.3d at 569. At the suppression hearing, Agent Wind testified that DeMarce said, "You know, I don't want to talk to you. I'm not going to sign anything," and walked out of the room. The district court found that "this [was] not a clear invocation of the right to remain silent but merely reflects that DeMarce declined to answer Wind's questions or was reluctant to talk at that time." This is clear error. DeMarce's statements and conduct evince a direct, unambiguous, and unequivocal intention to remain silent.

Even so, this court concludes that the motion to suppress was properly denied because DeMarce's right was scrupulously honored. See United States v. Hogan, 539 F.3d 916, 922 (8th Cir.2008) ("An error is harmless if it does not affect substantial rights of the defendant and did not influence or had only a slight influence on the verdict."). In determining whether a defendant's right to silence is "scrupulously honored," this court considers three factors: 1) whether the initial interrogation ceased immediately upon the defendant's request; 2) whether a significant period had passed and fresh Miranda warnings were given before resuming questioning; and 3) whether the later interrogation is restricted to a crime that was not the subject of the first interrogation. Hatley v. Lockhart, 990 F.2d 1070, 1073-74 (8th Cir.1993), citing Michigan v. Mosley, 423 U.S. 96, 104, 96 S.Ct. 321, 46 L.Ed.2d 313 (1975).

First, it is undisputed that the agents ceased questioning immediately upon DeMarce's request on June 27. Second, questioning was not resumed for nine days, and fresh Miranda warnings were given. See Hatley, 990 F.2d at 1074 (holding that more than two hours is a "significant period of time"), quoting Mosley, 423 U.S. at 106, 96 S.Ct. 321. Third, although the subject matter of the interrogations was the same, "a second interrogation is not rendered unconstitutional simply because it involves the same subject matter discussed during the first interview." Hatley, 990 F.2d at 1074, quoting United States v. House, 939 F.2d 659, 662 (8th Cir.1991). Most importantly, there was "no effort to wear down the defendant's resistance." Hatley, 990 F.2d at 1074, citing Jackson v. Wyrick, 730 F.2d 1177, 1179 (8th Cir.1984). After DeMarce refused to make a statement at the initial interrogation, the agents "did not attempt to persuade [him] to reconsider or to resume the interrogation." United States v. Finch, 557 F.2d 1234, 1236 (8th Cir.1977). DeMarce's right to silence was "scrupulously honored," and the district court properly denied the motion to suppress. DeMarce asserts that he also invoked his right to remain silent at the July 6 interrogation. He alleges that he again told the agents that he did not want to talk about the incident because he "wanted to forget it" and "was a monster." He made the admission only after agent Wind told him that he would have to talk about the incident eventually, and "people make mistakes." The government claims that DeMarce asked what charges were being brought against him, and made a brief statement after being read his Miranda rights. After his statement, DeMarce stated that he "didn't want to talk about it anymore." Given the disputed testimony, the district court did not clearly err by finding that DeMarce did not invoke his right to silence at the July 6 interrogation. See United States v. Allmon, 500 F.3d 800, 806 (8th Cir.2007) ("A district court's assessment of a witness's credibility is almost never clear error given that court's comparative advantage at evaluating credibility.").

DeMarce also argues that the statements quoted above are like a "Christian burial speech," used to overcome his right to silence. See Brewer v. Williams, 430 U.S. 387, 399, 97 S.Ct. 1232, 51 L.Ed.2d 424 (1977) (holding detective's religious-based statements to suspect were tantamount to interrogation despite absence of direct questioning). The district court did not err in finding that the agents' statements here did not improperly play on the defendant's religious and emotional state.

B.

DeMarce argues that the district court erred by admitting the hearsay testimony of D.D.'s mother. This court reviews a district court's evidentiary rulings for abuse of discretion. See United States v. Love, 521 F.3d 1007, 1009 (8th Cir.2008).

At trial, the defense objected to the mother's testimony about what D.D. told her on the night of the assault. Without a limiting instruction, the district court admitted the following testimony as "either nonhearsay under [Federal Rule of Evidence] 801(d) or ... as a statement of how [D.D.] came to be in the condition that she was":

Q: Back to the morning of June 27th, when you went to bed at 2:30, did you sleep through the entire evening?

A: Yes. Or until my daughter woke me up.

Q: And what time was that?

A: About 4:30.

Q: And what happened then?

A: First she came into the room and said she fell in the hallway when she tried to go to the bathroom and she hit her lip. So I looked at it and told her to go wash up and to go back to bed. And then on her way out she said: I think Uncle Joe took off with the truck. So I got up and went out and looked and the truck was gone. And then I called his mother to see if he had gone out there, and she said she hasn't seen him. So I told [D.D.] to wash up and get ready to go back to bed. And then I went back into my room to wake up my husband, and that's when my daughter came back in and she told me what really happened.

Q: And what did she tell you really happened?

A: She...