U.S. v. Raymer, 88-4402

• Decision Date: 20 June 1989
• Docket Number: No. 88-4402,88-4402
• Citation: 876 F.2d 383
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Kurt Douglas RAYMER, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 383

876 F.2d 383

UNITED STATES of America, Plaintiff-Appellee, v. Kurt Douglas RAYMER, Defendant-Appellant.

No. 88-4402.

United States Court of Appeals Fifth Circuit.

June 20, 1989.

John M. Colette, Jackson, Miss., (court-appointed), for defendant-appellant.

Ruth R. Harris, Asst. U.S. Atty., George Phillips, U.S. Atty., Jackson, Miss., for plaintiff-appellee.

Appeal from the United States District Court for the Southern District of Mississippi.

Before WISDOM, KING and WILLIAMS, Circuit Judges.

JERRE S. WILLIAMS, Circuit Judge:

Kurt Raymer appeals his conviction for threatening a probation officer. He asserts three major claims: (1) that his confession was involuntary, (2) that the government improperly elicited evidence from his psychologist, and (3) that the statute creating the offense (18 U.S.C. Sec. 115) does not apply to a retired official. We affirm.

FACTS

In late 1986 and 1987 appellant Kurt Raymer was serving a sentence for robbery in the Kentucky State Penitentiary in Eddyville, Kentucky. Several years earlier, he had been on probation in Mississippi for a previous conviction under the Federal Youth Corrections Act (YCA). Raymer believed that his YCA conviction had been set aside but was nevertheless being used improperly to enhance his Kentucky sentence. Raymer filed a motion to vacate, set aside or correct his sentence, and the government responded with an affidavit from the Mississippi Probation Office stating that Raymer's YCA conviction had not been set aside. Raymer's probation officer was not on duty the day the affidavit was sent, so it was signed by U.S. Probation Officer Gene Loper.

Raymer received a copy of this affidavit while confined in the Kentucky prison. On December 1, 1986, Raymer wrote a threatening message on the bottom of a copy of the affidavit, and mailed it to Loper. Raymer also enclosed a "poem" that contained more threatening language (hereafter "Letter 1"). This letter/poem was the basis of count I of the indictment.

On January 29, 1987, Raymer sent a threatening letter to Mrs. Sue Thompson, a court clerk whose name evidently appeared on some papers in Raymer's possession. This letter stated that Mrs. Thompson was "marked to die," and went on to say that a "pardner" of Raymer's would "take care of you and Mr. Gene Loper my parole officer in Jackson, but if he don't I promise you I will." ("Letter 2"). This letter was the basis of count II. Another letter to Mr. Loper, which was the basis of count IV, stated that "when I get out this time I'm killing you," and then went on to threaten to torture and kill Mr. Loper's family should Loper die before Raymer was released ("Letter 4"). ¹

On March 17, 1987, an FBI agent and Kentucky correctional officer interviewed Raymer while he was confined in the Kentucky prison hospital. Raymer was hospitalized because he had lacerated himself and ingested some wire two weeks before the interview. The agent warned Raymer of his Miranda rights by reading from the FBI "Advice of Rights" form. Raymer waived his rights by signing the form, and confessed to writing the letters. Raymer acknowledged each letter as his by signing the agent's photocopy of each of the first three letters a second time at the March interview. His confession was reduced to a written statement by the FBI agent, which he signed.

Raymer was indicted on four counts of violating 18 U.S.C. Sec. 115. The indictment charged him with threatening to kill Gene Loper in retaliation for official actions Loper had performed. ² On the motion of Raymer's counsel, the court ordered a psychiatric evaluation to determine Raymer's competence to stand trial. After that initial psychiatric evaluation, the court found Raymer incompetent and ordered him committed for hospitalization and treatment in December, 1987. Later an evaluation at another facility on April 7, 1988, found Raymer competent to stand trial. The court then held a competency hearing on May 19, 1988, and also found the defendant competent to stand trial.

Raymer was convicted by a jury on counts 1, 2, and 4 of the indictment. Pursuant to 18 U.S.C. Sec. 4244, the court determined that Raymer suffered from a mental disease or defect, and committed him to treatment in lieu of imprisonment. The court's order constituted a provisional sentence of imprisonment for the maximum term authorized by the statute, which was 5 years for each incident, a total of 15 years.

I. Validity of Confession

Raymer contends that his waiver of Miranda rights and subsequent confession, which was admitted into evidence at trial, were not voluntary. The lower court conducted a pretrial suppression hearing and concluded that the waiver and confession were voluntary. The government bears the burden of proving by a preponderance of the evidence that both the waiver of Miranda rights and the confession were voluntary. Colorado v. Connelly, 479 U.S. 157, 168-69, 107 S.Ct. 515, 522-23, 93 L.Ed.2d 473 (1986); Lego v. Twomey, 404 U.S. 477, 489, 92 S.Ct. 619, 626-27, 30 L.Ed.2d 618 (1972); United States v. Terrazas-Carrasco, 861 F.2d 93, 95 (5th Cir.1988). This Court must give credence to the credibility choices and findings of fact of the district court unless clearly erroneous. United States v. Watson, 591 F.2d 1058, 1061 (5th Cir.), cert. denied, 441 U.S. 965, 99 S.Ct. 2414, 60 L.Ed.2d 1070 (1979). The ultimate issue of voluntariness is a legal issue, however, which requires the appellate court to make an independent determination. Wicker v. McCotter, 783 F.2d 487, 498 (5th Cir.), cert. denied, 478 U.S. 1010, 106 S.Ct. 3310, 92 L.Ed.2d 723 (1986); United States v. Kreczmer, 636 F.2d 108, 110 (5th Cir. Unit B Feb. 1981); Jurek v. Estelle, 623 F.2d 929, 932 (5th Cir.1980) (en banc), cert. denied, 450 U.S. 1001, 101 S.Ct. 1709, 68 L.Ed.2d 203 (1981).

Raymer relies primarily on his mental condition to argue that his waiver of rights and his confession were not the product of his "free and rational choice." Martinez v. Estelle, 612 F.2d 173, 177 (5th Cir.1980). He also suggests that under the "totality of circumstances" his waiver was not voluntary, considering factors such as his prescription drug intake, the prison hospital environment, his painful condition, and his limited education.

Raymer's argument that his mental illness and the circumstances surrounding his hospitalization render his Miranda waiver and confession involuntary is foreclosed by Colorado v. Connelly, supra. The Court in Connelly determined that the unsolicited confession and subsequent waiver of Miranda rights by an individual who claimed that he was under the compulsion of the "voice of God" were not involuntary. The court concluded that "notions of 'free will' " have no place in assessing the voluntariness of a confession or Miranda waiver. Connelly, 479 U.S. at 169, 107 S.Ct. at 523. Instead, the voluntariness of the waiver or confession depends "on the absence of police overreaching, not on 'free choice' in any broader sense of the word." Id. at 170, 107 S.Ct. at 523.

Connelly mandated a shift in the analysis of the voluntariness of a Miranda waiver. See Dix, Federal Constitutional Confession Law: The 1986 and 1987 Supreme Court Terms, 67 Tex.L.Rev. 231, 288-91 (1988). The relevant test no longer focuses on the defendant's free will, as it has in the past. See Henry v. Dees, 658 F.2d 406, 409 (5th Cir. Unit A Oct. 1981); Jurek v. Estelle, 623 F.2d at 937. Instead, the focus is on the presence or absence of police coercion. Connelly, 479 U.S. at 167-70, 107 S.Ct. at 522-524; Penry v. Lynaugh, 832 F.2d 915, 918 (5th Cir.1987), cert. granted, --- U.S. ----, 108 S.Ct. 2896, 101 L.Ed.2d 930 (1988); Bell v. Lynaugh, 828 F.2d 1085, 1092 (5th Cir.1987), cert. denied, --- U.S. ----, 108 S.Ct. 310, 98 L.Ed.2d 268 (1987).

A defendant's mental condition still properly figures into the voluntariness calculus. Police exploitation of the mental condition of a suspect, using "subtle forms of psychological persuasion," could render a confession involuntary. Connelly, 479 U.S. at 164-65, 107 S.Ct. at 520-21. See also Blackburn v. Alabama, 361 U.S. 199, 206-08, 80 S.Ct. 274, 279-81, 4 L.Ed.2d 242 (1960). Thus, while we still examine the totality of the circumstances to determine voluntariness, "that assessment must include an element of official overreaching to warrant a conclusion that a confession is involuntary under constitutional law." Miller v. Dugger, 838 F.2d 1530, 1536 (11th Cir.1988), cert. denied, --- U.S. ----, 108 S.Ct. 2832, 100 L.Ed.2d 933 (1988).

There is no evidence which suggests police coercion in obtaining Raymer's confession and waiver. The testimony of his doctor and social worker indicated that he was not under the influence of any medication on the day of his confession. Raymer was read his rights aloud, and then he reviewed and signed the F.B.I. waiver form. Raymer also testified at the suppression hearing that he was aware of his constitutional rights at the interview because of his previous experience with the court system. The agent who obtained the confession testified that Raymer "admitted right off" that he had written the letters, so questioning was not extensive. At one point, Raymer requested and was allowed to leave the interview area, but he returned thirty minutes later. Raymer was in the interview room and subject to questioning for a total of 42 minutes. In short, in the absence of any further evidence of government coercion, we hold that both Raymer's confession and waiver of his rights were voluntary.

II. Question Attempting to Elicit Incriminating Evidence

from Psychologist

Raymer also contends that the court erred in overruling his objection and refusing his request for a mistrial when the government attempted to elicit an incriminating statement Raymer had made from one of Raymer's court appointed psychologists. Pursuant to Raymer's motion in limine, the government had been directed by the court not to ask any questions of any...