U.S. v. Lowe

• Decision Date: 20 March 1978
• Docket Number: No. 76-1785,76-1785
• Citation: 569 F.2d 1113
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Eileen LOWE, Defendant-Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 1113

569 F.2d 1113

UNITED STATES of America, Plaintiff-Appellee, v. Eileen LOWE, Defendant-Appellant.

No. 76-1785.

United States Court of Appeals, Tenth Circuit.

Argued and Submitted Sept. 29, 1977.

Decided Jan. 20, 1978.

Certiorari Denied March 20, 1978.

See 98 S.Ct. 1507.

George J. Duckworth, Denver, Colo., for defendant-appellant.

Charles F. Sandoval, Asst. U. S. Atty., Albuquerque, N. M. (Victor R. Ortega, U. S. Atty., Albuquerque, N. M., on brief), for plaintiff-appellee.

Before McWILLIAMS, BARRETT and DOYLE, Circuit Judges.

McWILLIAMS, Circuit Judge.

Eileen Lowe was charged with willfully and knowingly transporting in interstate commerce, from the State of New Mexico to the State of Texas, one John Paul Norris, age one week, who had been unlawfully seized, kidnapped, carried away and held by Eileen Lowe for the purpose of keeping the infant child as her own, in violation of 18 U.S.C. § 1201. The Jury returned a guilty verdict and Lowe now appeals her conviction and sentence. On appeal, she urges the following as grounds for reversal: (1) error by the trial court in denying motions for acquittal or mistrial made during the testimony of an F.B.I. agent concerning his interrogation of the defendant; (2) error by the trial court in permitting, over objection, the mother of the kidnapped child to identify her child, in the presence of the jury; and (3) refusal by the trial court of Lowe's request, made during the Government's presentation of rebuttal testimony, to either change counsel or be permitted to proceed pro se. When viewed in context, none of these matters rises to the level of reversible error, and we therefore affirm.

The Government's evidence established that the defendant, age 30, gained entry into the Norris home in Albuquerque, New Mexico, through a ruse and at gunpoint abducted the one week old child of Mr. and Mrs. Edward P. Norris. Both Mrs. Norris and her mother-in-law, who was in the Norris' home at the time of the kidnapping made positive identification of the defendant. After abducting the infant, the defendant took the child by plane from Albuquerque, New Mexico to Lubbock, Texas and then by automobile from Lubbock to Lowe's home in Muleshoe, Texas.

A few days after the kidnapping, the authorities in Muleshoe, Texas, became suspicious of the circumstances surrounding Lowe's acquisition of a new-born baby. Investigation by F.B.I. agents eventually culminated in the arrest of Lowe and the return of the child to the Norris family.

The defendant Lowe testified in her own behalf and admitted all of the underlying facts. Her defense was that she had an intense desire to have a baby of her own and was hopeful that if she could have a baby, her current marriage might be salvaged. At one point, the defendant thought she was pregnant, but when this proved to be incorrect, she determined to kidnap somebody else's child. In furtherance of her desire, the defendant testified that she went to Albuquerque and kidnapped the Norris baby.

The defendant's testimony also revealed a tangled marital history and indicated the presence of emotional problems. A psychologist and a psychiatrist were called as defense witnesses, their testimony indicating that the defendant's emotional problems were so severe that at the time of the offense she was unable to distinguish right from wrong and that she was in fact suffering from a form of insanity. The Government called as a rebuttal witness another psychiatrist who testified that, in his opinion, Ms. Lowe was sane, though she admittedly did have emotional problems. It was on this general state of the record that the jury returned a verdict of guilty as charged.

The first ground relied on for reversal is the denial by the trial court of defendant's motions for judgment of acquittal or mistrial. These motions were made during the course of the direct examination of one Frank Haines, an F.B.I. agent. Haines testified that, based on information which he had acquired during the course of his investigation of the kidnapping, he became "suspicious" that Lowe's baby was not really hers and possibly was the Norris baby. He determined that the next step was to speak with Lowe, as he realized he could be mistaken, and that possibly the child was really hers. Accordingly, Haines, another F.B.I. agent, Lowe's minister, and an attorney who was then representing Lowe in a pending divorce proceeding, proceeded to the home in which Lowe was then residing. After identifying themselves, Haines inquired as to whether the baby was actually Lowe's. She stated that it was. Ms. Lowe consented to Haines viewing the baby and his visual observation squared generally with the description of the Norris baby which had been given him. According to Haines, he asked Lowe to accompany him to the local sheriff's office so that he could do some checking and that Lowe voluntarily agreed to do so. In the sheriff's office Lowe reiterated her statement that the child was hers, and stated that it had been delivered at St. Jude's Hospital in Oklahoma City. It was at this point that Haines advised Lowe of her Miranda rights. Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). After conferring with her lawyer, Lowe changed her earlier statement, and said her child was actually delivered by a midwife in Albuquerque, and not in a hospital in Oklahoma City. After again conferring with her lawyer, Lowe declined to answer any further questions.

The foregoing summary is of testimony given by the witness Haines out of the presence of the jury. It was the position of trial counsel, who does not represent Lowe on appeal, that the Miranda warning should have been made before Haines did any questioning of Lowe. The trial court did not agree, and was of the view that the questioning by Haines prior to the Miranda...