U.S. v. New

• Decision Date: 18 July 2007
• Docket Number: No. 06-2726.,06-2726.
• Citation: 491 F.3d 369
• Parties: UNITED STATES of America, Appellee, v. Donovan NEW, Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

491 F.3d 369

UNITED STATES of America, Appellee, v. Donovan NEW, Appellant.

No. 06-2726.

United States Court of Appeals, Eighth Circuit.

Submitted: January 8, 2007.

Filed: July 18, 2007.

Counsel who presented argument on behalf of the appellant was Gary G. Colbath, Jr., AFPD, Rapid City, SD.

Counsel who presented argument on behalf of the appellee was Mark E. Salter, AUSA, of Sioux Falls, SD. Appearing on the brief was Kathryn E. Ford, AUSA, Sioux Falls, SD.

Before COLLOTON and GRUENDER, Circuit Judges, and GOLDBERG, Judge.¹

COLLOTON, Circuit Judge.

A jury convicted Donovan New of two counts of involuntary manslaughter for causing a single-vehicle accident that resulted in the death of his father and cousin. He raises several issues on appeal, and we affirm.

I.

On June 17, 2005, New drove with his father and cousin on Highway 18 near the Pine Ridge Indian Reservation in South Dakota. New and his cousin had been drinking heavily that day. At around 4:00 p.m., the driver lost control of the vehicle, which went into a ditch on the opposite side of the road, rolled twice, and landed in a field. The vehicle had been traveling at about 89 miles per hour at the time of the accident, on a road with a speed limit of 65 miles per hour. New and his cousin were thrown from the vehicle, and New's father was trapped in the back seat. Only New survived. At the scene, New claimed that his cousin was the driver.

New was flown to Rapid City Regional Hospital. Hospital staff performed a blood test, which showed a .320 blood alcohol content and the presence of marijuana. Later that day, he was given a variety of medications due to his spinal injuries, difficulty breathing, and pain in his chest and shoulder.

The following afternoon, Special Agent Charles Cresalia of the Federal Bureau of Investigation arrived at the hospital to interview New. New admitted that he had been driving at the time of the crash and had consumed alcohol earlier in the day.

Several weeks after the accident, New went to the Bureau of Indian Affairs ("BIA") building at Pine Ridge to reclaim his belongings left at the scene of the accident. While there, he spoke with BIA Special Agent Fred Bennett. New told Bennett that he had been driving at the time of the accident, although he also said that others were telling him that he was not the driver, and that he was having doubts about his memory of that night. In late July, Bennett arrested New on charges of involuntary manslaughter. In a post-arrest interview, New said he was not sure who was driving.

At trial, the jury heard evidence from various lay witnesses, officers, doctors, and experts in accident reconstruction. New also testified in his own defense that he could not remember who was driving at the time of the crash. The jury found him guilty on both counts of involuntary manslaughter. At sentencing, the district court² applied an adjustment for obstruction of justice under the advisory guidelines based on a finding that New committed perjury during the trial. The court ultimately sentenced New to consecutive terms of 72 months' imprisonment on each count of involuntary manslaughter.

II.

A.

New claims that his statements made during the interview in the hospital room should have been suppressed because Agent Cresalia took those statements in violation of the rule of Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). Miranda requires that law enforcement agents provide certain prescribed warnings before conducting an interrogation of a suspect who is in custody. Id. at 444, 86 S.Ct. 1602. New contends that he was in custody during the hospital interview, because he was physically unable to leave, and that Agent Cresalia was thus required to advise him of the Miranda warnings before questioning him. We review the district court's decision on this matter de novo. United States v. Axsom, 289 F.3d 496, 500 (8th Cir.2002).

The Supreme Court in Miranda stated that warnings are required when interrogation is "initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way." Miranda, 384 U.S. at 444, 86 S.Ct. 1602. Since then, the Court has clarified that a suspect is entitled to Miranda protection when he is "in custody," and that "the ultimate inquiry is simply whether there is a formal arrest or restraint on freedom of movement of the degree associated with formal arrest." California v. Beheler, 463 U.S. 1121, 1125, 103 S.Ct. 3517, 77 L.Ed.2d 1275 (1983) (per curiam) (internal quotation omitted). The custody inquiry thus turns on whether, given the totality of the circumstances, a reasonable person would have felt at liberty to terminate the interrogation and leave, Thompson v. Keohane, 516 U.S. 99, 112, 116 S.Ct. 457, 133 L.Ed.2d 383 (1995), or in this case, to terminate the interrogation and cause the agent to leave.

At the time of the interview in question, New was in a private hospital room, confined to his bed in a neck brace and under medication. When Agent Cresalia entered, he identified himself to New, explained he was investigating the fatal accident, and told New that he did not have to talk. Cresalia advised New that he would not be arrested, that he could stop the interview at any time, and that he could ask the agent to leave the room at any time. The district court found that Cresalia used neither force nor deceptive tactics during the interview. New used his call button to summon his nurse twice during the interview, but never sought to terminate the meeting with Cresalia. The final eight minutes of the conversation were tape recorded, and the district court found that New's answers appeared to be very coherent. The district court heard extensive evidence regarding New's medications, and found expressly that New was "not impaired" at the time of the interview, and that even if he was under the influence of narcotic painkillers, "there is no evidence that he was so intoxicated that he did not understand his rights." New was not arrested at the conclusion of the interview.

New's physical condition and immobility require careful analysis of whether Miranda should apply, but we conclude, based on the totality of the circumstances, that New was not in custody. In resolving this question, we focus on the restraint imposed by the government agents, Axsom, 289 F.3d at 503, because "[t]he sole concern of the Fifth Amendment, on which Miranda was based, is governmental coercion." Colorado v. Connelly, 479 U.S. 157, 170, 107 S.Ct. 515, 93 L.Ed.2d 473 (1986); see also United States v. Erving L., 147 F.3d 1240, 1247 (10th Cir.1998). "[T]he most obvious and effective means of demonstrating that a suspect has not been taken into custody ... is for the police to inform the suspect that an arrest is not being made and that the suspect may terminate the interview at will." United States v. Griffin, 922 F.2d 1343, 1349 (8th Cir.1990) (internal quotation omitted). Agent Cresalia made use of this "obvious and effective means" by informing New at the outset that he could terminate the interview at any time, and that he would not be arrested. Cresalia followed through with his assurance by making no arrest at the end of the encounter. The agent himself placed no constraints on New's movement or on his ability to communicate with hospital staff. There is no basis to question the district court's finding that the agent used no force or deceptive tactics, and we do not think the atmosphere in this hospital room, where a nurse was summoned twice to attend to New during the interview, can be fairly described as "police dominated." See id. at 1351-52. Given that Cresalia plainly communicated New's freedom to decline the interview and took no other actions to aggravate the environment, we conclude that New was not in custody, and that Miranda warnings were not required.³

We also conclude that the district court did not clearly err in finding that New's statements to Agent Cresalia were voluntary. A confession is voluntary if it is "the product of an essentially free and unconstrained choice by its maker." Schneckloth v. Bustamonte, 412 U.S. 218, 225, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973). New argues that the influence of medications, the "psychological implications" of his circumstances, and his physical helplessness in a strange location combined to render his statements to Cresalia involuntary. We are not persuaded.

Our cases hold that "[a] confession may not be found involuntary absent some type of coercive activity on the part of law enforcement officials." United States v. Kime, 99 F.3d 870, 880 (8th Cir.1996). There was no coercive activity by Agent Cresalia that overbore New's will or impaired his capacity for self-determination. See Schneckloth, 412 U.S. at 226, 93 S.Ct. 2041. The district court's finding that New suffered from no mental impairment from medication is supported by expert testimony and not clearly erroneous. Against that backdrop, Cresalia's simple act of asking questions in a twenty-five minute interview, while emphasizing that New was not under arrest and was free to terminate the meeting, is not the sort of conduct that results in an overborne will attributable to an agent of the government. See generally United States v. LeBrun, 363 F.3d 715, 725-27 (8th Cir.2004) (en banc).

B.

New also appeals the admission of two prior convictions for driving under the influence of alcohol ("DUI"). Evidence of prior crimes is not admissible to prove a defendant's bad character or propensity to commit bad acts, but it may be admissible for other purposes, including to prove requisite knowledge. See Fed.R.Evid. 404(b). One element of the charged offense in this case was satisfied by proof that the defendant knew, or could reasonably foresee, that his conduct was a threat to the lives of others. (R. Doc. 70, Jury Instruction 2). The government offered the evidence of prior convictions...