U.S. v. Little Bear
| Decision Date | 19 September 1978 |
| Docket Number | No. 78-1232,78-1232 |
| Citation | 583 F.2d 411 |
| Parties | UNITED STATES of America, Appellee, v. Effie Sylvia LITTLE BEAR, Appellant. |
| Court | U.S. Court of Appeals — Eighth Circuit |
Orell D. Schmitz of Schlosser & Schmitz, Bismarck, N. D., filed brief for appellant.
James R. Britton, U. S. Atty., and James S. Hill, Asst. U. S. Atty., Bismarck, N. D., filed brief for appellee.
Before LAY, BRIGHT, and ROSS, Circuit Judges.
Effie Sylvia Little Bear takes this direct appeal from her jury conviction for manslaughter for the stabbing of Charles Warren Byington, committed within the Standing Rock Sioux Indian Reservation in the District of North Dakota, in violation of 18 U.S.C. §§ 1112, 1153 (1976). 1 The district court sentenced Ms. Little Bear to imprisonment for a term of two years. On this appeal Ms. Little Bear contends that (1) the district court erred in refusing to suppress statements she made to FBI agents, and (2) the jury selection procedure discriminated against rural residents, thereby violating her right to trial by an impartial jury. We affirm.
Charles Warren Byington died from a massive stab wound inflicted at his home. Ms. Little Bear, the victim's common law wife, and Laura Mae Byington Ryckman, his daughter, were known to be residing with Byington at the time of his death.
On May 14, 1977, the day following the death, James Molash, a criminal investigator for the BIA, interviewed Ms. Little Bear at the police department. Agent Molash advised Ms. Little Bear of her constitutional rights, and she told him she wanted to sign the rights form and the waiver provision. Ms. Little Bear described to Molash her few recollections of the night Byington died, but stated she had no memory of what had happened to him.
Special agent Ivan W. Nicholson of the FBI joined the investigation into the death of Byington, and by July 1977 he and Molash had decided to give Ms. Little Bear a polygraph examination. Molash contacted Ms. Little Bear and reported to Nicholson that she was willing to take a polygraph examination.
When Ms. Little Bear arrived at the police department on July 29, 1977, she was met by agent Nicholson who explained to her that she had been asked to come for a polygraph examination. Nicholson then presented Ms. Little Bear with a "Consent to be Interviewed with Polygraph" form, which recited:
I, Effie Little Bear, consent freely and voluntarily to be interviewed by Special Agents of the Federal Bureau of Investigation, which I also known as FBI, in connection with (the) death of Charles Byington. I agree to the use of a polygraph or so-called 'lie detector' during this interview or any part of it, and I am willing to be present at the time and place of (the) interview for such time as necessary to complete the interview. No threats or promises of any kind have been made to me to obtain my consent to this interview.
Nicholson asserts no coercion was applied, and Ms. Little Bear admits signing the form.
Nicholson then proceeded to advise Ms. Little Bear of her constitutional rights. He read the FBI form listing the rights to her, and she signed the form's waiver provision.
Nicholson introduced Ms. Little Bear to FBI agent Charles Yeschke who explained the nature and function of a lie detector test as he attached the apparatus to Ms. Little Bear. Agent Yeschke mentioned nothing to Ms. Little Bear regarding the polygraph consent form or the rights-waiver form she had signed. As a preliminary question, Yeschke asked Ms. Little Bear if she had stabbed Byington. She responded in the affirmative and said she wanted to talk about it. At that point Yeschke removed the polygraph apparatus from her. He explained at trial that
* * * I could see that the polygraph testing was not going to be appropriate at that time and that I would not be conducting a polygraph examination * * *.
Once the polygraph attachments were removed, Ms. Little Bear was not given any further admonitions or information concerning her rights to an attorney or to remain silent. Mr. Yeschke later testified that "(Ms. Little Bear) explained to me that she had stabbed Irish (Byington) * * *."
Yeschke drafted a statement consisting of Ms. Little Bear's confession. Agent Nicholson, who had left Ms. Little Bear alone with Yeschke, returned and witnessed Yeschke's reading and Ms. Little Bear's signing of the statement.
At the suppression hearing, Ms. Little Bear contended that the confession should not be admitted because she had not understood the rights to which she was entitled. She further contended that she did not recall being told she could have an attorney present or that one would be provided for her. She stated that she was nervous and scared. In denying her motion to suppress the statement, the district court indicated concern over the police techniques used in the case.
(B)y giving the Consent to Interview with the Polygraph, before receiving the Advice of Rights, there was a possibility that the Suspect had been maneuvered into a position where she believed she did not have a capacity to refuse the interview * * *. (Emphasis added.)
However, the district court determined from Ms. Little Bear's testimony that the order in which the documents were signed made no difference in this case. The court ruled that Ms. Little Bear had voluntarily confessed and it denied the suppression motion.
On this appeal Ms. Little Bear challenges the district court's refusal to suppress at trial the oral and written statements she made to the FBI. The prosecution must demonstrate by a preponderance of the evidence that Ms. Little Bear's confession was voluntary. See Lego v. Twomey, 404 U.S. 477, 489, 92 S.Ct. 619, 30 L.Ed.2d 618 (1972). Upon a review of the record, we reject Ms. Little Bear's challenge and hold that she voluntarily supplied the FBI agents with her confession.
We share some concern of the district court over the procedure utilized by the FBI agents in obtaining the confession. The record in this case does not disclose the precise circumstances which induced Ms. Little Bear to consent to the polygraph test. Nonetheless, having consented, Ms. Little Bear appeared at the examination site where agent Yeschke attached to her the polygraph connections. In light of the unsettling circumstances and the psychological pressure inherent in a polygraph situation, it should not be surprising that an unsophisticated Indian woman, such as Ms. Little Bear, would be upset...
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