U.S. v. Gresham, 77-5582

• Decision Date: 27 November 1978
• Docket Number: No. 77-5582,77-5582
• Citation: 585 F.2d 103
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Gary Richard GRESHAM, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 103

585 F.2d 103

UNITED STATES of America, Plaintiff-Appellee, v. Gary Richard GRESHAM, Defendant-Appellant.

No. 77-5582.

United States Court of Appeals, Fifth Circuit.

Nov. 27, 1978.

Joe S. Holland, El Paso, Tex. (Court-appointed), for defendant-appellant.

Jamie Boyd, U. S. Atty., LeRoy M. Jahn, Stanley Serwatka, W. Ray Jahn, Asst. U. S. Attys., San Antonio, Tex., for plaintiff-appellee.

Appeal from the United States District Court for the Western District of Texas.

Before COLEMAN, GEE and RUBIN, Circuit Judges.

GEE, Circuit Judge:

Gary Richard Gresham, convicted of violating the Dyer Act, appeals raising issues related to his two confessions.

A grand jury in the Western District of Texas charged that Gresham transported a 1975 Chevrolet Monte Carlo, a stolen vehicle, from Florida to the Western District of Texas, knowing it to have been stolen.

On May 28, 1978, driving the automobile described in the indictment, Gresham, a resident of Austin, Texas, stopped in El Paso at 3 o'clock in the morning and tried to sell a pistol and a shotgun. This aroused suspicion. The officers communicated with the National Crime Information Center computer in Washington and were informed that the vehicle was registered as the property of Ronald Suskind and had been reported stolen in Fort Myers, Florida. The jury was allowed to hear this evidence but, on objection for hearsay, the trial court sustained the objection and cautioned the jury that the NCIC report was not to be accepted as proof of the truthfulness of its contents.

Strangely, the prosecution did not put Mr. Suskind on the stand, offered no other proof of ownership, and offered no direct independent proof from any source that the vehicle had, in fact, been stolen. Instead, it chose to rely primarily on two written confessions from Gresham that he did steal the automobile from an apartment house parking lot in Fort Myers.

Appellant's two confessions, though consistent and detailed, are not overly lengthy and we set them out in the margin. ¹ His attack on his conviction advances along two general lines. The first addresses the adequacy of the voluntariness hearings, conducted outside the jury's presence, concerning the confessions. The second maintains that the confessions were insufficiently corroborated as to the identity and stolen character of the automobile.

Corroboration

It is the law of this circuit, grounded in Supreme Court authority, that one may not be convicted solely on the basis of an uncorroborated confession. United States v. Abigando, 439 F.2d 827 (5th Cir. 1971). Doubtless this reflects at least two concerns, one ancient and the other perhaps more recent: that a crime in fact has been committed and that the accused be one having at least a plausible connection with it. In earlier times, we are told, with travel and communications slow and unreliable, it was not uncommon for persons to disappear for long periods of time, perhaps to return only after an accused had suffered for having supposedly made away with them. Improvement in these aspects of life, while reducing the former danger, has introduced its own new hazard: that sensational and widely-publicized crimes may produce spurious "confessors," drawn forth in some strange manner by the aura of notoriety that surrounds such crimes.

Nevertheless, it is true than when an otherwise admissible confession is introduced, the focus of trial shifts to determining its reliability. And if it is determined to be reliable, independent proof of all elements of the crime is not required, though the evidence as a whole including the confession must of course always be such that the jury could properly conclude that it establishes guilt beyond a reasonable doubt. United States v. Abigando, supra at 832-3. A degree of corroboration may even be found in the detailed nature of the confession itself, or in its indication of knowledge by the accused of such facts as he would be unlikely to know were he not the criminal. Ibid.

Bearing these observations in mind, we turn now to the confessions and independent evidence in Gresham's case. About his connection with the crime, we need have little doubt: he was apprehended in possession of the Monte Carlo automobile alleged to have been stolen. As for the question whether the existence of a crime at all was established, we note that the elements of such a violation of the Dyer Act as that with which Gresham was charged (18 U.S.C. § 2312) are three: a stolen vehicle, known by the defendant to be such, and transported by him in interstate commerce. All of these are amply covered by each of Gresham's confessions, and covered in such ample detail as itself to inspire a degree of confidence in their verity.

In addition, there was independent verification of one element which appears in each, the license number of the Camaro automobile purloined by Gresham in Hollywood, California, and abandoned by him on the Florida parking lot. One of the arresting officers testified that in checking it by means of the license number given him by Gresham, and which he could have known of in no other way, he verified that the Camaro was stolen in California and abandoned on the same Florida parking lot from which the Monte Carlo automobile in issue was stolen. Since this evidence, though hearsay, came in without objection, "it is to be considered and given its natural probative effect as if it were in law admissible." Daniel v. United States, 234 F.2d 102, 107 (5th Cir. 1956), Quoting Diaz v. United States, 223 U.S. 442, 450, 32 S.Ct. 250, 56 L.Ed. 500 (1911). As such, it vouches powerfully for the reliability of the confession and its account of Gresham's cross-country peregrinations. More, it bears significantly, if circumstantially, on all three elements of the crime charged, since it indicates that someone abandoned one stolen car bearing a California license number known to Gresham on the parking lot from which the Monte Carlo automobile in which he was apprehended commenced its interstate wanderings.

Nor is other evidence supporting the confession's reliability entirely lacking. Interstate transportation of the Monte Carlo automobile was corroborated by a gasoline sales ticket, dated four days before Gresham's first confession, signed by him, and found in his possession, indicating a purchase in Cody, Wyoming. There was testimony that credit cards found in the possession of Gresham had been in the possession of the Camaro owner, a name mentioned in Gresham's confessions, when they were stolen in California. And a license plate receipt for the Monte Carlo automobile's Florida plates was given the arresting officers by Gresham, which indicated its owner was a person other than Gresham. In addition, there was testimony, some actually elicited by Gresham's counsel on cross-examination, that the National Computer Information Center reported the Monte Carlo automobile as stolen. As to some of this testimony objection was made and the jury was instructed not to consider it as establishing that the Monte Carlo was in fact stolen. Finally, there was testimony by persons on the scene that both Gresham and his passenger physically resisted arrest.

On consideration of all the above, we conclude that there was sufficient evidence independent of the confession to establish beyond a reasonable doubt that Gresham had transported the Monte Carlo vehicle interstate. There was also evidence indicating that Gresham abandoned the Camaro vehicle, recently stolen in California, on the very lot from which the Monte Carlo automobile, registered in another's name, was taken. And while this evidence, standing alone, might have been insufficient to establish that Gresham stole the Monte Carlo or knew it was stolen, we think it sufficient to corroborate the confession. As we said in Abigando, supra at 833, "a confession can be corroborated by bolstering parts of it to show trustworthiness. Some elements can be proved by the confession alone." Here the confessions were adequately corroborated and either, together with the other evidence, formed a sufficient basis for the jury verdict assuming voluntariness. To that issue we now turn.

Determining Voluntariness of the Confessions

At Gresham's trial the government first presented as witnesses Messrs. Thetford and Duran, workers at the truck stop where Gresham was apprehended, who had been present at his arrest. After a short cross-examination of each, defense counsel indicated a desire to reserve these witnesses for further questioning at a separate hearing on the voluntariness of Gresham's confession. The next government witness presented was an Officer Drennan, a motor vehicle theft investigator with the El Paso Police Department, who took Gresham's confession of May 28. At the point in his testimony at which that matter was to be gone into, defense counsel approached the bench and requested that the voluntariness hearing be held, stating his position to be that Gresham had given the confession while in a condition of such extreme fatigue, complicated by drugs and alcohol, as to render it involuntary. The court questioned whether the request was timely, the prosecutor pointed out that Rule 12, Fed.R.Crim.P., required that such a request be made before trial, and the court at first refused to grant such a hearing.

The colloquy at the bench continued, however, the court observing that Officer Drennan seemed the key witness on the question. The court then retired the jury and permitted both sides to question Drennan, who maintained that Gresham had shown no signs of unusual fatigue or other abnormal state at the time he confessed. With this, the court declared its intention to admit the confession and refused permission for the defense to interrogate the reserved witnesses Thetford and Duran outside the presence of the jury, though defense counsel was offered a recess to confer with them. Among other things, the court observed, "I'm not...