U.S. v. Petary

• Decision Date: 14 September 1988
• Docket Number: Nos. 87-2485,87-2486,s. 87-2485
• Citation: 857 F.2d 458
• Parties: 26 Fed. R. Evid. Serv. 1090 UNITED STATES of America, Appellee, v. Donald Eugene PETARY, Appellant. UNITED STATES of America, Appellee, v. Andrew Wessel SIX, Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 458

857 F.2d 458

26 Fed. R. Evid. Serv. 1090

UNITED STATES of America, Appellee, v. Donald Eugene PETARY, Appellant.

UNITED STATES of America, Appellee, v. Andrew Wessel SIX, Appellant.

Nos. 87-2485, 87-2486.

United States Court of Appeals,

Eighth Circuit.

Submitted May 13, 1988.

Decided Sept. 14, 1988.

William Price, Des Moines, Iowa for Petary.

Elizabeth Kruidenier, Des Moines, Iowa, for Six.

Keith Hammond, Asst. U.S. Atty., Des Moines, Iowa, for appellee.

Before HEANEY and McMILLIAN, Circuit Judges, and HILL, ^* Senior District Judge.

McMILLIAN, Circuit Judge.

These cases were consolidated for purposes of appeal. Donald Eugene Petary and Andrew Wessel Six appeal from final judgments entered in the District Court ¹ for the Southern District of Iowa upon jury verdicts finding each guilty of kidnapping in violation of 18 U.S.C. Sec. 1201. Petary and Six received identical sentences of two hundred years imprisonment with possibility of parole after sixty-six years, pursuant to 18 U.S.C. Sec. 4205(b)(1), and each was ordered to pay a special assessment of $50 and restitution in the amount of $1331.40. For reversal, Petary argues that the district court erred in denying his pre-trial motion to suppress certain statements and in imposing a two-hundred year sentence. For reversal, Six argues that the district court erred in (1) admitting evidence of other crimes, (2) denying his motion for change of venue, (3) denying his motion for a mistrial, and (4) admitting photographic evidence. Six further argues that the cumulative effect of these errors denied him a fair trial. For the reasons discussed below, we affirm the judgments of the district court.

In Ottumwa, Iowa, on the night of April 10, 1987, Mrs. Stella Allen accompanied Six and his uncle Petary on a purported test drive of a pick-up truck that the Allen family had offered for sale. Mrs. Allen was slightly familiar with Petary because he had previously lived in the same trailer court. During the test drive and after driving a distance down the highway, Six pulled the truck off the road and stopped, indicating that he wanted Petary to drive. As the two men switched places, Six pulled a knife on Mrs. Allen, threatened her with bodily harm and bound her hands with duct tape. They then returned to the Allens' trailer home.

Petary and Six confronted Mr. Donald Allen outside the trailer and ordered him back into the trailer home by threatening to kill Mrs. Allen. Six had a knife pointed at Mrs. Allen's neck. When they were inside the trailer, Six taped and bound Mr. Allen to a chair. Six awakened the Allens' twelve-year-old daughter, Kathy Allen, in the process of taping her mouth shut. Six then raped the Allens' seventeen-year-old daughter, Christine Allen, who was approximately six months pregnant. Then both men tried to abduct the entire Allen family. Petary forced the two Allen daughters out of the trailer and into his station wagon. Six forced Mrs. Allen at knifepoint out of the trailer. While Six was holding Mrs. Allen, there was a scuffle and Mr. Allen and Christine Allen escaped. Kathy Allen remained in the station wagon. Six reacted by slashing Mrs. Allen's throat. ² The two men then fled in the station wagon, taking Kathy Allen with them.

On April 11, 1987, near Moscow, Texas, both men were apprehended and arrested. Kathy Allen was missing. After his arrest, local law enforcement officers informed Petary of his Miranda rights, and he signed a waiver of rights. He was then interviewed by Federal Bureau of Investigation (FBI) agents. Before interrogating him, the FBI agents repeated the Miranda warnings. Petary initially expressed some reluctance, but he agreed to talk about "some things and some he would not." The FBI agents told Petary that Six was currently undergoing questioning and was talking and would probably place full blame for the crime on him. Unknown to Petary, Six had refused to cooperate and did not make any statements. The FBI agents urged Petary to reveal the nature and extent of his participation in the kidnapping and pressed him for details as to Kathy Allen's whereabouts. Several hours later, after the FBI agents told Petary that Mrs. Allen was still alive, Petary provided additional information that enabled the authorities to locate Kathy Allen's body. ³

On April 22, 1987, Petary and Six were indicted and charged in a single count indictment with kidnapping Kathy Allen in violation of 18 U.S.C. Secs. 1201, 2. Petary and Six were tried separately and each was found guilty. These appeals followed.

No. 87-2485 United States v. Donald Eugene Petary

Petary first argues that the district court erred in denying his motion to suppress certain statements because the statements were not made voluntarily. Petary argues that before he was interrogated by the FBI agents, he had not slept for approximately twenty-four hours and had consumed beer but no food. He argues that four agents interrogated him for six to seven hours despite his expressed reluctance to talk and induced him to talk by lying to him about their interrogation of Six and by promising him that if he cooperated, his cooperation would be made known to the proper authorities. Petary contends that his incriminating statements were induced by the FBI agents' misrepresentations and therefore were involuntary. We do not agree.

The voluntariness of statements made during custodial interrogation is subject to plenary review. Miller v. Fenton, 474 U.S. 104, 112, 106 S.Ct. 445, 451, 88 L.Ed.2d 405 (1985); United States v. Wilson, 787 F.2d 375, 380 (8th Cir.), cert. denied, 479 U.S. 857, 107 S.Ct. 197, 93 L.Ed.2d 129 (1986). The nature of this review is a flexible consideration of the totality of the circumstances to determine whether the challenged statements were the result of an overborne will. Rachlin v. United States, 723 F.2d 1373, 1377 (8th Cir.1983). This inquiry requires an examination of the details of the interrogation, the tactics used, and the personal characteristics of the defendant. Id. "Misrepresentations on the part of the government do not make a statement per se involuntary." Flittie v. Solem, 775 F.2d 933, 945 (8th Cir.1985) (banc) (citations omitted), cert. denied, 475 U.S. 1025, 106 S.Ct. 1223, 89 L.Ed.2d 333 (1986). It is but one factor to be considered in reviewing the totality of the circumstances. See Frazier v. Cupp, 394 U.S. 731, 739, 89 S.Ct. 1420, 1424-1425, 22 L.Ed.2d 684 (1969).

Here, Petary was advised of his Miranda rights at least twice and he signed a waiver; he does not now claim to have misunderstood those rights. Petary is a competent adult and was familiar with arrest procedures, factors which indicate that he would not easily fall prey to FBI interrogation tactics. Further, the interrogation had an immediate investigatory objective. At the time of the interrogation, the FBI agents were unaware of Kathy Allen's condition or her whereabouts. Petary provided the information about where Kathy Allen could be found only after he was told that Mrs. Allen was still alive. A logical conclusion would be that Petary decided to provide provide this information because he thought he could still avoid a murder charge if he helped the authorities locate Kathy Allen while she, too, had a chance for survival. Taken together, the totality of the circumstances indicate that Petary acted knowledgeably and freely when he made the incriminating statements. We thus hold that the district court did not err in denying Petary's motion to suppress these statements.

Petary next argues that the district court's imposition of a two-hundred year sentence without possibility of parole for sixty-six years was in excess of statutory limits and an abuse of discretion. Petary contends that several factors support a less severe sentence: his role in the kidnapping was relatively passive, he is fifty years old, he has been diagnosed as an alcoholic, and he provided information that helped the authorities find Kathy Allen.

In general, a sentence is not subject to review unless it exceeds statutory limits, violates constitutional or procedural requirements, or shows that the district court manifestly or grossly abused its discretion. E.g., United States v. Rosandich, 729 F.2d 1512, 1512 (8th Cir.1984) (per curiam); United States v. Hollis, 718 F.2d 277, 279 (8th Cir.1983), cert. denied, 465 U.S. 1036, 104 S.Ct. 1309, 79 L.Ed.2d 707 (1984). The penalty for the crime of kidnapping is "imprisonment for any term of years or for life." 18 U.S.C. Sec. 1201. Title 18 U.S.C. Sec. 4205(b)(1) authorizes the sentencing judge, when required by "the ends of justice and the best interest of the public," to set the minimum number of years that a prisoner must serve before he or she is eligible for parole, so long as the minimum term does not exceed one-third of the total sentence length. In Rothgeb v. United States, 789 F.2d 647, 652 (8th Cir.1986), this court affirmed a sentence requiring the defendant to serve longer than ten years before he is eligible for parole under Sec. 4205(b)(1). See also United States v. O'Driscoll, 761 F.2d 589, 600 (10th Cir.1985), cert. denied, 475 U.S. 1020, 106 S.Ct. 1207, 89 L.Ed.2d 320 (1986) (three-hundred-year sentence without possibility of parole for ninety-nine years held within statutory bounds for kidnapping conviction). Petary's two-hundred-year sentence was within the statutory limits for the crime of kidnapping and thus not illegal. Id. at 598.

Nor did the district court abuse its discretion in sentencing Petary to a term of two hundred years without possibility of parole for sixty-six years. The crime was particularly brutal, Petary has a long criminal record, and the record shows that his role in the kidnapping was an active, not passive, one.

No. 87-2486 United States v. Andrew Wessel Six

Six first argues that the district court erred in admitting evidence of other criminal acts that occurred before the kidnapping. Six...