U.S. v. Doby

• Citation: 598 F.2d 1137
• Decision Date: 16 May 1979
• Docket Number: No. 78-1840,78-1840
• Parties: UNITED STATES of America, Appellee, v. Curtis Gale DOBY, Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (8th Circuit)

Page 1137

598 F.2d 1137

UNITED STATES of America, Appellee, v. Curtis Gale DOBY, Appellant.

No. 78-1840.

United States Court of Appeals,

Eighth Circuit.

Submitted April 16, 1979.

Decided May 16, 1979.

Paul A. Zoss, Austin, Myers, Peterson & Gaudineer, Des Moines, Iowa, argued and on brief, for appellant.

Richard G. Blane, II, First Asst. U. S. Atty., Des Moines, Iowa, (argued), and Roxanne Barton Conlin, U. S. Atty., Des Moines, Iowa, on brief, for appellee.

Before STEPHENSON and McMILLIAN, Circuit Judges, and BOGUE, ^* District Judge.

STEPHENSON, Circuit Judge.

Defendant Doby appeals from his conviction by a jury on a two-count indictment charging in Count I armed robbery of a bank in violation of 18 U.S.C. § 2113(d), and in Count II conspiracy with Riley Ray Fultz and John Stanley Campbell to rob the same bank. ¹ Defendant contends there was trial error in (1) admitting defendant's confession into evidence; (2) failing to grant a mistrial because of the testimony of an FBI agent inferring that defendant had a prior criminal record; and (3) allowing the government to amend the indictment to change the name of the bank that was robbed. We affirm.

On May 19, 1978, at approximately 3:50 p. m. three men entered and robbed the Brenton Bank of South Des Moines. The robbers left with over $24,000, which included 25 "bait" bills. One of the bank robbers was described as wearing a ski cap over his face, another as wearing a ladies nylon stocking over his face and the third wore a red baseball cap. All three were armed with firearms. The robber wearing the baseball cap counted to 60 while the other two took money from the tellers. One of the robbers took a revolver from a bank guard during the robbery. The robbers left the bank in a stolen car and switched to another car a few blocks from the bank.

On May 24, five days after the robbery, Special Agent Hartung of the FBI's Houston division was conducting an investigation to determine the whereabouts of Riley Ray Fultz. Fultz and two other individuals had escaped from the custody of the Texas Department of Corrections, and the FBI had filed complaints charging the three with unlawful flight to avoid confinement. On that date Agent Hartung received information from an agent in Shreveport, Louisiana, that Fultz and the other two escapees had some connection with Curtis Gale Doby (appellant) of Splendora, Texas. All three escapees were reported armed and dangerous. Agent Hartung and Captain Walker, of the Montgomery County, Texas, sheriff's department, drove by the Doby residence looking for a white over blue Oldsmobile that had been connected with Fultz. It was not observed that day but was noted along with other vehicles at the Doby residence the next day.

On May 26, 1978, at approximately 9:00 a. m. the sheriff's department commenced a surveillance of the Doby residence. At approximately 3:00 p. m. FBI agents joined county deputies, including Captain Walker, in surrounding the Doby residence to await the arrival of a 1967 Chevrolet, which Captain Walker had spotted the day before, but was gone at the time. Earlier in the day during the course of the surveillance three officers interviewed Mrs. Nash, who lived in a trailer about 50 feet behind the Doby house. She advised them she had used the telephone in the Doby house around noon that day but had seen no one in the house at the time. She told them the house key was hidden in the flower pot in front of the house. A short time later she observed one of the officers exit the Doby house through the back door and then reenter the house.

At approximately 7:00 p. m. the 1967 Chevrolet arrived on the premises. Doby, his wife, Glenda, and Fultz were restrained immediately as they got out of the vehicle. Fultz and Doby were searched and a quantity of money was found on Fultz, some of which was later identified as bait bills taken from the Brenton Bank of South Des Moines. After handcuffing Fultz, Captain Walker reached under the front passenger's seat of the car, where Fultz had been sitting, and retrieved a revolver. Using the key found in the flower pot, Captain Walker and another officer entered the house over the objections of Doby, ostensibly for the purpose of determining whether other persons sought under the fugitive warrant were in the house. At the suppression hearing Walker testified that he had no knowledge that other officers had entered prior thereto. He testified that after he entered the house he found narcotics in plain view.

Thereafter, other officers including one of the FBI agents completely searched the residence and seized a large number of articles, including the revolver which was later determined to have been taken from the Brenton Bank guard during the robbery on May 19. At some time during the search of the residence, one of the officers removed a shotgun from the trunk of Doby's auto.

After the narcotics were found in the house, Captain Walker advised the Dobys that they were under arrest on narcotics charges. One of the officers advised the Dobys of their Miranda rights. At approximately 9:45 p. m. Doby was taken before a justice of the peace, where he was charged under Texas law with knowing possession of a usable quantity of marijuana and placed in custody at the Montgomery County Jail. ² The FBI agents took Fultz to Huntsville, Texas, and turned him over to the prison authorities of the Texas Department of Corrections.

On June 6 FBI Agent Venables obtained a statement from one Paula Ross Skrove implicating Curtis Doby, Riley Fultz and John Campbell in the May 19th robbery of the Brenton Bank of South Des Moines. Shortly thereafter it was learned that the revolver found in the Doby residence had been taken from the bank guard during the robbery of the Brenton Bank of South Des Moines and some of the money found on Fultz at the time of his arrest was bait money from the same bank.

On June 8, FBI Agent Marshall went to the Montgomery County Jail, where he took Doby's fingerprints and secured the money that had been recovered on the day of Doby's arrest. Agent Marshall then returned to interview Doby regarding the robbery of the Des Moines bank.

Agent Marshall told Doby that he wished to discuss the bank robbery and then advised Doby of his rights by reading the standard FBI advice of rights form. Doby stated that he understood his rights but refused to sign the form. Doby then agreed to talk to Agent Marshall.

Agent Marshall told Doby that the revolver and money found on the day of the arrest were connected with the Des Moines bank robbery; the revolver was determined to have belonged to the bank guard and the money was part of the bank money; and furthermore, that another person ³ had already given a statement indicating Doby had been involved in the bank robbery. Initially Doby denied any knowledge of the robbery. The agent reiterated the above information. Doby then admitted his participation in the bank robbery and signed a detailed statement concerning the same including a description of what took place and the various roles played by the participants.

The trial court found the search of Doby's residence to be illegal and suppressed the bank guard's revolver seized in the search. In admitting Doby's confession, the court stated:

Defendant also seeks to suppress the incriminating statements made by the defendant to the F.B.I. agent while he was confined in jail, because Doby was confronted with illegally seized evidence which induced the confession. The relevant evidence seized in the search of the house was the revolver taken from the bank guard at the robbery. Defendant was also confronted with bait money which was legally seized and a detailed statement from a witness. The Court does not believe that reference to the revolver by the F.B.I. agent was sufficient to destroy the voluntary nature of the confession. The Court is of the opinion that the confession should not be suppressed.

Doby below argued that the confession was a direct product and fruit of the unlawful search of Doby's residence and also that the circumstances surrounding the taking of the confession made it involuntary. In this appeal Doby charged that the trial court ruled that the confession was admissible solely because of the "voluntary nature of the confession," and the trial court thereby applied an incorrect standard. We remanded this matter to the district court for the limited purpose of making further findings with respect to the admissibility or lack thereof of defendant's confession under both the Fifth and Fourth Amendments. See Brown v. Illinois, 422 U.S. 590, 600-02, 95 S.Ct. 2254, 45 L.Ed.2d 416 (1975). The district court's certification of its findings has now been filed with this court and reads in material part as follows:

The Court held that under the circumstances the confession was voluntary but made no reference to the Fourth Amendment claim. The Court has now reexamined the pertinent portions of the transcripts of the suppression hearing held September 21 and October 5, 1978 and now makes the following specific findings relating to the Fourth and Fifth Amendment claims of the defendant.

(1) That Mr. Doby's Fifth Amendment rights were not violated and that the confession was a product of his own free will in the Fifth Amendment sense.

(2) That Mr. Doby's Fourth Amendment rights were not violated. The confession was not a fruit of an illegal search. Although the court excluded the bank guard's revolver because of an unlawful search of the Doby residence, the bait money and the statement of Paula Ross tied Mr. Doby into the bank...