U.S. v. Kreczmer, 80-5256

• Decision Date: 05 February 1981
• Docket Number: No. 80-5256,80-5256
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. James Earnest KRECZMER, Defendant-Appellant. . Unit B
• Court: U.S. Court of Appeals — Fifth Circuit

Page 108

636 F.2d 108

UNITED STATES of America, Plaintiff-Appellee, v. James Earnest KRECZMER, Defendant-Appellant.

No. 80-5256.

United States Court of Appeals, Fifth Circuit.

Unit B

Feb. 5, 1981.

Joseph Morrell, Jacksonville, Fla., for defendant-appellant.

Ernst D. Mueller, Asst. U. S. Atty., Jacksonville, Fla., for plaintiff-appellee.

Appeal from the United States District Court for the Middle District of Florida.

Before HILL, KRAVITCH and HATCHETT, Circuit Judges.

KRAVITCH, Circuit Judge.

Appellant was convicted by a jury of armed robbery of a bank in violation of 18 U.S.C. § 2113(d). ¹ On appeal he raises a single issue: whether his confession was voluntary because he allegedly was under the influence of alcohol and other drugs. Concluding that the confession was voluntary, we affirm the conviction.

In April, 1979, a lone gunman robbed a federal savings and loan association in Jacksonville Beach, Florida. The robber left a brown paper bag at the scene of the robbery. The FBI laboratory subsequently identified fingerprints taken from the bag as belonging to appellant James Kreczmer. Appellant, who was not in federal custody, was indicted for the robbery on September 10, 1979.

On the afternoon of September 15, 1979, appellant was arrested by local authorities in Morgan City, Louisiana, for public intoxication, public indecency, and disturbing the peace. Because appellant had been indicted for a federal offense, local police detained him in the city jail until federal authorities could take him into custody. On the morning of September 17, an FBI agent interviewed appellant in the Morgan City Jail. Appellant read and signed a form waiving Miranda rights and proceeded to give a detailed narrative of the Florida robbery and his subsequent activities.

Prior to trial, appellant moved to suppress this confession. At the suppression hearing, appellant testified that he was under the combined influence of marijuana, cocaine, THC and alcohol at the time of arrest, and this condition continued through the time he was questioned. He testified that he could not recall making a confession to anyone. He did recall that someone had given him "something to sign," but he could not remember whether he was told what that "something" was, or whether he read it.

One Rodney Bowen, appellant's cell-mate in the Morgan City Jail September 15-17, testified that appellant was incoherent and "spaced out" throughout his stay in the Morgan City Jail, including the morning of September 17.

Two witnesses, the FBI agent who interrogated appellant and the Assistant Chief of the Morgan City Police Department, who was present during the interrogation, testified that appellant showed no signs of intoxication at the time of the questioning. Based upon the testimony of the government agents, the fact that the confession was made some thirty-six hours after appellant's arrest, and the clarity and coherence of the statement itself, the magistrate concluded that the confession was voluntarily made, and "was not in any way based upon any interference with Defendant's free and rational intellect by drugs." The district court adopted the magistrate's recommendation and the confession was used against appellant at trial.

On appeal, appellant raises a single issue: whether, because of his alleged intoxication, the confession was voluntary. To be voluntary, a confession must be the product of a rational intellect and free will. Townsend v. Sain, 372 U.S. 293, 83 S.Ct. 745, 9 L.Ed.2d 770 (1963). A confession is involuntary if the defendant is so intoxicated by alcohol or other drugs that the confession is not rationally and freely given. See United States v. Taylor, 508 F.2d 761 (5th Cir. 1975).

In this case the magistrate found that appellant was not under the influence of drugs at the time of his confession and that his intellect was not impaired. This finding was based largely upon credibility determinations of the testimony of each witness at the suppression hearing. Such credibility choices are clearly within the province of the finder of fact. United States v. Watson, 591 F.2d 1058 (5th Cir. 1979). Moreover, findings of fact by the district court on a motion to suppress should not be disturbed on appeal unless clearly erroneous. Jurek v. Estelle, 623 F.2d 929 (5th Cir. 1980) (en banc); United States v. Llinas, 603 F.2d 506 (5th Cir. 1979). The ultimate issue of voluntariness, however, is an issue of law, and the appellate court must make an independent determination. Davis v. North Carolina, 384 U.S. 737, 86 S.Ct. 1344, 16 L.Ed.2d 360 (1966); Jurek v. Estelle, supra. We conclude that the evidence amply supports the district court's finding that appellant was not under the influence of drugs at the time of the confession and that the confession was voluntary.

In the usual case, this conclusion would end our inquiry. Here, however, this court took notice sua sponte that the district court may have employed a constitutionally impermissible standard in evaluating the voluntariness of the confession. In Rogers v. Richmond, 365 U.S. 534, 81 S.Ct. 735, 5 L.Ed.2d 760 (1961), the Supreme Court held that it is impermissible to consider the truth or falsity of a confession in ruling on its voluntariness. This decision has been adhered to consistently and implemented both in decisions of the Supreme Court and of this court. Lego v. Twomey, 404 U.S. 477, 484 n.12, 92 S.Ct. 619, 624 n.12, 30 L.Ed.2d 618 (1972); Johnson v. New Jersey, 384 U.S. 719, 729 n.9, 86 S.Ct....