U.S. v. Medico

• Decision Date: 25 May 1977
• Docket Number: No. 807,D,807
• Citation: 557 F.2d 309
• Parties: 2 Fed. R. Evid. Serv. 33 UNITED STATES of America, Appellee, v. Michael MEDICO, Appellant. ocket 76-1426.
• Court: U.S. Court of Appeals — Second Circuit

Page 309

557 F.2d 309

2 Fed. R. Evid. Serv. 33

UNITED STATES of America, Appellee, v. Michael MEDICO, Appellant.

No. 807, Docket 76-1426.

United States Court of Appeals, Second Circuit.

Argued Feb. 22, 1977.

Decided May 25, 1977.

Paul Windels, Jr., New York City (Windels & Marx, J. Dennis McGrath, New York City of counsel), for appellant.

Lee Alan Adlerstein, Asst. U. S. Atty., Brooklyn, N.Y. (David G. Trager, U. S. Atty., E. D., Bernard J. Fried, Asst. U. S. Atty., Brooklyn, N.Y., of counsel), for appellee.

Before MANSFIELD and VAN GRAAFEILAND, Circuit Judges, and CARTER, District Judge. ^*

ROBERT L. CARTER, District Judge:

On May 27, 1976, there was an armed robbery of the Chemical Bank at 23-98 Bell Boulevard, Queens, New York by two masked men. While one of the men held a shotgun to the assistant bank manager, the other came into the tellers' area, and took almost $23,000 in cash from the tellers' drawers. The two then left the bank. Rosario Frisina, the branch manager, and Barbara Balzarini, a teller, were in the tellers' area. Appellant was indicted and convicted for the crime. He appeals on the grounds that errors at a pre-trial suppression hearing and errors at trial warrant reversal.

Claimed Pre-Trial Errors

On June 2, 1976, at separate interviews, F.B.I. agent David Carman showed Frisina, Balzarini and Louis Castabile, another bank employee, a group of eight photographs of white males, one of which was that of the appellant. Each selected appellant's photograph as that of one of the bank robbers.

Shortly thereafter, on June 2, appellant was apprehended, and on the same day, F.B.I. agents picked up Maria Medico, appellant's wife. They went with her to her apartment, searched the apartment and took from it unused cartridges, spent cartridges dug out of the furniture and walls of the apartment, and a pair of red pants riddled with bullet holes.

On June 24, 1976, Judge Weinstein held a pre-trial suppression hearing to determine whether the procedures employed by agent Carman in displaying the photographs to Frisina, Balzarini and Castabile were unduly suggestive and whether the Medico apartment had been entered and searched with Mrs. Medico's consent. He found no basis for invalidating the photographic display to the bank employees, nor for suppressing the evidence seized at the apartment. We agree with the trial court.

Discussion

The photographic display issue can be disposed of summarily. Agent Carman testified that he showed the bank employees eight photographs at separate interviews, but did not indicate that one of the photographs was that of one of the bank robbers. He asked each employee to look at the photographs to determine whether they recognized anyone as being the individual who participated in the robbery. The photographs were handed to each employee in a group. They went through them and picked out Medico's photograph. The procedure followed was clearly proper. Simmons v. United States, 390 U.S. 377, 383-384, 88 S.Ct. 967, 19 L.Ed.2d 1247 (1968); see also Kirby v. Illinois, 406 U.S. 682, 691, 92 S.Ct. 1877, 32 L.Ed.2d 411 (1972).

We also agree with Judge Weinstein that the prosecution met its burden of proving that Mrs. Medico had "freely and voluntarily given" her consent to the F.B.I. agents to enter and search her apartment. Bumper v. North Carolina, 391 U.S. 543, 548, 88 S.Ct. 1788, 20 L.Ed.2d 797 (1968). A search pursuant to a valid consent is constitutionally permissible, Schneckloth v. Bustamonte, 412 U.S. 218, 227, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973), and the totality of all the circumstances, id. at 227, 93 S.Ct. 2041, leaves no doubt that consent was freely given. Mrs. Medico testified that the F.B.I. agents were neither threatening nor menacing in eliciting her consent (Tr. 46, 51), ¹ and that she had read the consent form before signing it (Tr. 48). Appellant argues that Mrs. Medico was never informed that she had a constitutional right to refuse the F.B.I. agents permission to enter and search her apartment, but "knowledge of a right to refuse is not a prerequisite of a voluntary consent," ibid., although it is one of the factors to be considered, ibid. No argument is made that Mrs. Medico was unauthorized to permit a search of the apartment she and appellant shared.

Appellant contends that the totality of the circumstances

"reveals strong evidence of implicit psychological coercion upon Mrs. Medico. Under the power of drugs, with an hysterical daughter, her husband just arrested by F.B.I., cut off from consulting with her friend, . . . with perhaps as many as ten agents in her apartment, with threats being made about the fact that 'we don't want to take a mother from her child,' it was not surprising that Maria Medico would have succumbed. . . ."

Brief of Defendant-Appellant at 28. In determining whether acquiescence was voluntary, "account must be taken of . . . the possibly vulnerable subjective state of the person who consents." Schneckloth v. Bustamonte, supra, 412 U.S. at 229, 93 S.Ct. at 2049. Mrs. Medico was undoubtedly psychologically vulnerable ² when she agreed to the search, but the record discloses no evidence that the F.B.I. agents took advantage of this weakness by the use of subtle or overt pressure to secure her cooperation. A large number of agents in her apartment could have proved unsettling, but, as already noted, Mrs. Medico testified that they were neither threatening nor menacing.

We also find it difficult to read the statement made by one of the agents that "we don't want to take a mother from her child" as an implied threat as appellant urges us to do, in light of the fact that it was immediately preceded by the statement, "we are not here to arrest any woman with a child" (Tr. 48). Nor did Mrs. Medico indicate that she thought the agent meant the challenged statement as a threat. ³

Mrs. Medico also testified that on the day in question she had used "pot, cocaine, heroin, methadone" (Tr. 50). The suggestion that drugs impaired her faculties and therefore made her incapable of voluntarily consenting is controverted by her clear recollection of the incidents that took place and her description of her own thought processes. Moreover, this testimony is frankly incredible. It's reliability is made more questionable because it differs somewhat from her earlier testimony "Q. Were you using drugs at this time, Mrs. Medico?

A. Yes.

Q. What sort of drugs were you on?

A. Well, on the program, methadone. I started using I was smoking heroin I mean smoking pot."

(Tr. 49). Under the circumstances, Judge Weinstein, who had an opportunity, which we do not, to observe Mrs. Medico's demeanor and assess her behavior on the stand, would have been justified in substantially discounting or completely disregarding this aspect of her story.

For these reasons, we agree with the trial court that Mrs. Medico's consent was freely and voluntarily given.

Claimed Errors at The Trial

F.B.I. agent Raymond Bernard identified a pair of red pants which he had taken from the Medico apartment on June 2. The pants contained numerous holes in them which the agent testified appeared to be "pellet holes possibly from a shotgun" (Tr. 80). He also identified a 32 calibre shell, a 22 calibre shell and a Smith 22 calibre shell as objects taken from the Medico apartment during the agents' search (Tr. 80-81). F.B.I. agent Jerry Loar identified three lead fragments which he testified had been removed from the wall of the back bedroom of the Medico apartment and that two of the fragments appeared "to be either 22 or 25 calibre slugs fired from a 22 calibre pistol" (Tr. 84). He testified that there were holes in the bedroom wall of the apartment caused by shots being fired at the wall (Tr. 85). Appellant argues that such evidence was highly prejudicial and of no probative value in respect of the charges in the indictment. Therefore, it is urged, its admission constituted reversible error.

William Carmody, a bank employee, testified that about five minutes after the robbers had fled with the bank funds and while he was locking the entrance door, a bank customer knocked on the door. Carmody had seen this customer monthly at the bank for the past five years (Tr. 92), but he did not know his name (Tr. 91) and had not seen him since the robbery (Tr. 92). A young man about 20 years old whom Carmody did not know was sitting outside in a car giving the customer the make and license plate number of the getaway car. The customer relayed the information through the door to Carmody who took it down on his check book. Carmody could not hear what the young man was saying to the customer (Tr. 94), although he could see the youth's lips move as the customer was telling him what was being said. Carmody took down the description of the getaway car as a "tan Dodge Valiant" with license plate number "700 CQA" (Tr. 92). Judge Weinstein allowed the testimony in under Rule 804(b)(5), Fed.R.Ev. The judge offered appellant a five day adjournment to meet the testimony or make his own investigation (Tr. 96). Appellant declined the invitation asserting that the government had indicated that it had made serious attempts to locate the two witnesses without success. Ibid. On admitting the testimony the district judge advised the jury that it was hearsay, that since the two witnesses were not present, the statement was not subject to cross examination; that the probative value of the statement was for the jury to determine, bearing in mind that the two missing witnesses were not subject to cross examination and their testimony was not under oath (Tr. 95).

William Cariola testified that he used to work with Medico for a taxicab company and would see Medico driving an off-white Dodge with license plate number 700 CQA (Tr. 101). He denied ownership of a car bearing license plate number 700 CQA. At the side bar the government advised the court that according to Cariola he had lost and then recovered his...