U.S. v. Kiendra, 81-1217

• Decision Date: 09 November 1981
• Docket Number: No. 81-1217,81-1217
• Parties: 9 Fed. R. Evid. Serv. 553 UNITED STATES of America, Appellee, v. Victor KIENDRA, Defendant, Appellant.
• Court: U.S. Court of Appeals — First Circuit

Page 349

663 F.2d 349

9 Fed. R. Evid. Serv. 553

UNITED STATES of America, Appellee, v. Victor KIENDRA, Defendant, Appellant.

No. 81-1217.

United States Court of Appeals First Circuit.

Nov. 9, 1981.

Stephen R. White, Providence, R. I., by appointment of the Court, on brief for appellant.

Paul F. Murray, U. S. Atty., and James E. O'Neil, Asst. U. S. Atty., Providence, R. I., on brief for appellee.

Before COFFIN, Chief Judge, CAMPBELL and BREYER, Circuit Judges.

COFFIN, Chief Judge.

Appellant was convicted of interstate transportation of stolen motor vehicles by a jury in the federal district court for the District of Rhode Island. On appeal, he challenges two rulings of the trial judge: (1) that an FBI Agent who interrogated him in prison could testify about appellant's confession to the crimes, and (2) that the government could, if appellant testified in his own defense, present impeachment evidence that he had prior convictions for possession of a stolen vehicle and receipt of stolen goods. Appellant argues that the trial judge erred first by finding that the confession was a product of a valid waiver of his Miranda rights, and second, by ruling that Rule 403 of the Federal Rules of Evidence does not give a trial judge discretion to prohibit the use of prior convictions. We affirm the district court's disposition of both issues.

While serving a sentence at the Rhode Island Adult Correctional Institution (ACI), appellant escaped in December, 1979. On January 2, 1980, he was arrested in Rhode Island while driving an automobile believed to have been stolen in Massachusetts. He was returned to the ACI and placed in solitary confinement for thirty days. While in solitary confinement, he allegedly undertook a "hunger strike" during which he consumed only one glass of milk per day. On February 4, 1980, FBI Agent Richard Cleary conducted a custodial interrogation. During that interrogation, appellant signed a "waiver of rights" form and allegedly made several inculpatory statements.

At a suppression hearing, the defendant moved to suppress the statements. He testified that he had not made any statements, that he was in a weakened condition due to the hunger strike, and that he signed the waiver form only "to get rid of" Agent Cleary. He called an ACI cook steward who testified that in early February appellant was "pale looking", "wasn't responding as well" as before, and weighed thirty pounds less than he had four months earlier. Agent Cleary testified that he had warned appellant of his rights at the beginning of the interview, appellant had acknowledged his understanding, had signed a waiver form, and had announced that "he didn't want to make any statement about any other car than the ones we thought we could prove." Cleary also testified that appellant appeared physically sound, in good health, and of sound mind.

A suspect who has been properly warned of his rights can "waive effectuation of these rights, provided the waiver is made voluntarily, knowingly, and intelligently." Miranda v. Arizona, 384 U.S. 436, 444, 86 S.Ct. 1602, 1612, 16 L.Ed.2d 694 (1966). See Edwards v. Arizona, --- U.S. ----, 101 S.Ct. 1880, 68 L.Ed.2d 378 (1981); North Carolina v. Butler, 441 U.S. 369, 373, 99 S.Ct. 1755, 1757, 60 L.Ed.2d 286 (1979). On appeal, appellant does not deny that he was properly informed of his rights before his confession. Nor does he deny that he signed a form waiving those rights. Rather, he challenges the district court's finding that his waiver and subsequent confession were voluntary, knowing, and intelligent.

At the outset we note the standard of review applied where a district court denies a motion to suppress a confession, finding that the defendant validly waived his right to remain silent. The ruling is to be upheld if any reasonable view of the evidence supports it, United States v. Payton, 615 F.2d 922 (1st Cir.), cert. denied, 446 U.S. 969, 100 S.Ct. 2950, 64 L.Ed.2d 830 (1980), and any specific findings of fact made after a hearing are binding unless they are clearly erroneous. United States v. Jobin, 535 F.2d 154 (1st Cir. 1976).

In this case, the district court made several specific findings to support its conclusion that the waiver was valid. It specifically rejected the testimony of the cook to the effect that the defendant was disoriented. It specifically accepted the testimony of FBI Agent Cleary that the defendant acted in the fashion one would expect from a person accused of a crime. And it also accepted Agent Cleary's description of what transpired during the interview. Nothing in the record suggests that these findings with regard to the credibility of the witnesses were clearly erroneous.

In his brief, appellant offers several reasons to conclude that his actions were not voluntary. First, he cites the fact that he had only a ninth-grade education. Second, he cites the fact that he had spent 30 days in solitary confinement prior to his interrogation by Agent Cleary. Third, he asserts that he was in a weakened state as the result of a thirty-two day hunger strike. And, finally, he cites his own testimony that he did not intend to make any statements and he signed the waiver only to "get rid of" Agent Cleary.

These allegations, when read together with a reasonable view of the evidence presented at the hearing, do not demonstrate that the district court's finding of a valid waiver was clearly erroneous. Appellant's educational level is not so low as to make unreasonable Agent Cleary's perception of his understanding or to render a written waiver per se invalid. Similarly, his solitary confinement (due to an earlier escape from prison) cannot be presumed to have weakened his will to such an extent that he was incompetent to exercise his rights. Indeed, the trial court found that appellant deliberately chose to limit his conversation with Agent Cleary to a discussion of certain particular stolen automobiles; he refused to discuss other automobiles about which the FBI had little evidence. The trial court made no specific finding with regard to whether appellant had in fact engaged in a hunger strike; it is reasonable to conclude from the record, however, that even if he had engaged in such a strike, he was not in extremis at the time of the interrogation. Appellant himself testified that he weighed 184 pounds before the strike and that he told Agent Cleary he weighed 180 pounds during the interrogation. Finally, appellant's testimony regarding his state of mind during the interrogation is insufficient to make the district court's finding unreasonable.

None of the cases cited by appellant are apposite. The case he deems "of particular relevance to the appellant", Greenwald v. Wisconsin, 390 U.S. 519, 88 S.Ct. 1152, 20 L.Ed.2d 77 (1968), involved a defendant who was not informed of his constitutional rights, who requested but was not given counsel, and who had been held for almost twenty-four hours without receiving medication which he was supposed to receive twice a day. That case clearly does not control this one.

In concluding, we emphasize the Supreme Court's recent reminder that "the voluntariness of a consent or an admission on the one hand, and a knowing and intelligent waiver on the other, are discrete inquiries". Edwards v. Arizona, --- U.S. ----, ----, 101 S.Ct. 1880, 1883, 68 L.Ed.2d 378 (1981). Neither the trial court nor the parties were careful to keep the inquiries separate in this case. Nevertheless, we believe that a reasonable view of the record amply supports the conclusion that appellant's voluntary waiver was also "knowing and intelligent". An explicit written waiver is strong evidence of a knowing and intelligent act. North Carolina v. Butler, supra, 441 U.S. at 373, 99 S.Ct. at 1757. That evidence is bolstered here by Agent Cleary's testimony regarding appellant's decision to limit the scope of the interrogation, as well as by appellant's admission at trial that he had understood his rights during the interrogation. Indeed, the only evidence that might cast doubt on the intelligence of the waiver was (1) appellant's testimony that he signed the form only to acknowledge that he understood his rights, not to forego them, and (2) Agent Cleary's testimony that appellant was willing to make oral statements but not written ones. Appellant's testimony, however, could permissibly be rejected as not credible. And although Agent Cleary's testimony might imply that appellant did not fully understand that oral statements could be used against him, that inference is not compelled. Appellant could rationally make oral statements but not written ones if he planned to deny the oral statements at trial (hoping jurors might find him more credible than the Agent) and he thought that his words might distract the Agent from investigating into other crimes.

Thus, a reasonable reading of the record supports the district court's decision to admit evidence of the confession.

The defendant also challenges the trial judge's deliberate and detailed advance ruling that, under Federal Rule of Evidence 609(a)(2), he had no discretion to keep the state from eliciting the defendant's prior convictions for crimes involving dishonesty, even if the prejudicial effect of those convictions would substantially outweigh their impeachment value.

The government urges that we not review this issue because the record gives no basis for determining whether the defendant would have testified, and what the substance of his testimony would have been, if the trial court had granted his motion. We deem these suggestions unrealistic. We think it more sensible to assume that testimony by a criminal defendant would be quite relevant; such a presumption helps to explain the recently acknowledged right to testify in one's own defense. Faretta v. California, 422 U.S. 806, 819 n.15, 95 S.Ct. 2525, 2533 n.15, 45 L.Ed.2d 562 (1975). See also New Jersey v. Portash, 440 U.S. 450, 99 S.Ct. 1292, 59 L.Ed.2d 501...