U.S. v. Palmer
| Decision Date | 21 August 1979 |
| Docket Number | No. 78-1122,78-1122 |
| Citation | 604 F.2d 64 |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. Chris PALMER, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Tenth Circuit |
David N. Williams, Asst. U. S. Atty., Albuquerque, N. M. (R. E. Thompson, U. S. Atty., Stanley K. Kotovsky, Jr., Asst. U. S. Atty., Albuquerque, N. M., with him, on briefs), for plaintiff-appellee.
Michael G. Rosenberg, Albuquerque, N. M., for defendant-appellant.
Before McWILLIAMS, BREITENSTEIN and McKAY, Circuit Judges.
In a juvenile hearing to the court without a jury, appellant-defendant Palmer, a 17-year-old Indian, was found guilty of aiding and abetting the assault on a car and its occupants on an Indian reservation. Violations of 18 U.S.C. §§ 2, 113(c) and (f), 1153 and 5032 were charged. His appeal attacks the sufficiency of the evidence and the receipt in evidence of a statement which he made to an agent of the Federal Bureau of Investigation. We affirm.
On the night of November 4, 1977, a car driven by Peterson John and containing eight other Indians was parked near Navajo Lake on the Navajo Indian Reservation in New Mexico. A second car drove up and one of its occupants talked to John and his passengers. The second car drove away and returned in 15-20 minutes. Its occupants then attacked John's car, breaking the headlights, slashing the tires, smashing the windows, and firing a shot into the hood of John's car. In the affray several of John's passengers were wounded. John got out of the car to remonstrate with the attackers, was stabbed, and was later found dead some distance from where his car was parked. Two passengers required substantial medical treatment for their wounds. The second car left, returned a third time, and its occupants again battered John's car.
Defendant says that the court erred in receiving testimony of FBI agent Tarazon relating to statements made to him on November 10 by defendant. As a witness for the prosecution Tarazon said that defendant admitted participation in the affray.
At a hearing on November 29, in which defendant was represented by counsel, he elected to have the case proceed under the Juvenile Delinquency Act. 18 U.S.C. § 5031 et seq. An information was filed against him and others. Defendant was arraigned and pleaded not guilty. On December 6 his attorney filed a motion to suppress defendant's statement to agent Tarazon. On December 8 defendant appeared in court with his attorney and changed his plea to that of guilty. After interrogating defendant as to his participation in the affray, the court permitted the change of plea. Later, defendant's counsel told the court that the defendant had just told him that his parents were outside the courtroom. The court held a recess to allow defendant to confer with his parents. After they had conferred, defendant's mother told the court that her son wished to stand trial. The court then permitted the withdrawal of the guilty plea. Without objection by defendant and without attention being called to the motion to suppress, the trial began the same day.
Agent Tarazon testified that he interviewed defendant after reading him his rights from the standard FBI "Advice of Rights Form." Defense counsel objected on the ground that he had not been furnished a copy of the form. After discussion of the change of plea, the court ruled that "under the circumstances" the witness could proceed. Tarazon said that before the interview he had discussed the matter with the defendant's mother and told her that he and another agent wished to talk to her son. He further said that she gave permission for him to do so.
The mother also said that the agent told her that she could not be present at the interview "because if I was there, he might not tell the truth or he might not speak." In rebuttal the agent denied that he told the mother that she could not be present and reasserted that she consented to his interviewing her son. The agent further said that he talked to the mother at the hospital where she was employed. She told him that she had no telephone at her residence. The agent tried to reach her later in the day at the hospital but could not, because she was off duty. The interview with the defendant was later.
Although the mother expressed a desire to be present at the interview, she took no action to assure her presence. The interview occurred without the mother present. Defendant refused to sign a waiver of rights form but agreed to make a statement. Without any objection, except on the ground of leading questions, the agent testified to the statements made by defendant to him with regard to the affray and his participation. Defense counsel cross-examined the agent in detail. The defense did not move to strike the agent's testimony and said nothing about the motion to suppress.
In his original and amended docketing statements in this court, the defendant did not claim as error the receipt of the agent's testimony. Also, he did not mention it in his first brief. The point was urged in his reply brief and in oral argument before this court.
The government contends that defendant has waived his objection to the agent's testimony. Its reliance on Diggs v. Cities Service Oil Company, 10 Cir., 241 F.2d 425, 427, is misplaced. In that case the issue in question was not mentioned in the trial court. In the instant case the defendant filed a motion to suppress. The government also relies on United States v. Ewing, 10 Cir., 445 F.2d 945, 949, vacated and remanded, 413 U.S. 913, 93 S.Ct. 3031, 37 L.Ed.2d 1022, wherein the court refused to consider an issue because it was not raised until the reply brief. The continuing validity of that holding is doubtful because the Supreme Court vacated the judgment of the court of appeals and remanded the case for further consideration of the mentioned issue. See, United States v. Ewing, 10 Cir., 491 F.2d 714. Accordingly, we consider the issue now raised.
We have only the testimony of the agent and of the defendant's mother. The defense did not request, and the court did not make, any findings of fact. Inherent in the court's general conclusion that the defendant was guilty of the offense charged, is approval of the receipt of the testimony relating to the statement of the defendant.
The instant case must be decided "on the totality of the circumstances surrounding the interrogation." This is not a case like People v. Burton, 6 Cal.3d 375, 99 Cal.Rptr. 1, 491 P.2d 793, or In re Patrick W., 84 Cal.App.3d 520, 148 Cal.Rptr. 735, vacated and remanded, --- U.S. ----, 99 S.Ct. 3093, 61 L.Ed.2d 870, for reconsideration in the light of Fare v. Michael C., supra. Those cases were concerned with a request, arguable or otherwise, of a minor to see a parent before custodial interrogation.
In the instant case the circumstances may be summarized thus. The agent sought out the mother and told her that her son would be "picked up" after school and interrogated with regard to the affray. The mother admits the conversation with the agent. The agent said that the mother gave him permission to question the son. The mother does not contradict this statement but says that the agent told her she could not be present. The agent denies that statement. Later in the day, and before the questioning of the defendant, the agent tried unsuccessfully to communicate with the mother. She did not say that she made any effort to reach her son and tell him of her visit with the agent. The credibility of the witnesses is for the trial court. Defendant does not question the sufficiency of the warning and does not claim any misunderstanding of his rights. For all that appears in the record, the defendant is a normal 17-year-old. The defendant did not request the presence at the interview of his mother, a lawyer, or any one else. The totality of the circumstances establishes that defendant's waiver was knowing and voluntary, and that the testimony of the agent with regard to defendant's statements was properly received in evidence.
We turn to the sufficiency of the evidence to sustain the conviction. The government evidence established three visits by the assailants to John's car. On the second visit they battered the car and assaulted the occupants, killing one and wounding several. On the third visit, after the occupants had fled, they again battered the car. Defendant admitted to agent Tarazon that he was with the assailants on each visit and that on the second visit he struck the car with a belt buckle and "a small piece of pipe or a piece of metal."
The court was not requested to make, and did not make, specific findings of fact. It held that defendant, and the two other juveniles who were tried with him, had violated the Juvenile Delinquency Act. The evidence shows that the defendant aided...
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