U.S. v. Robertson, 92-3374

• Decision Date: 21 March 1994
• Docket Number: No. 92-3374,92-3374
• Citation: 19 F.3d 1318
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Dale Allen ROBERTSON, Defendant-Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 1318

19 F.3d 1318

UNITED STATES of America, Plaintiff-Appellee, v. Dale Allen ROBERTSON, Defendant-Appellant.

No. 92-3374.

United States Court of Appeals, Tenth Circuit.

March 21, 1994.

Rehearing Denied May 9, 1994.

James E. Rumsey, Lawrence, KS, for defendant-appellant.

Gregory G. Hough, (Lee Thompson, U.S. Atty., with him on the Brief) Asst. U.S. Atty., District of Kansas, Topeka, KS, for plaintiff-appellee.

Before EBEL and KELLY, Circuit Judges, and COOK, Senior District Judge. ^*

H. DALE COOK, Senior District Judge.

Defendant-appellant Dale Allen Robertson was convicted after a jury trial of three counts. Counts 1 and 3 alleged that on two separate occasions (August 23, 1991 and September 4, 1991, respectively), defendant did by force, violence and intimidation take sums of money from the Wellsville Bank, Wellsville, Kansas, in violation of 18 U.S.C. Sec. 2113(a) and Sec. 2113(d). Count 2 alleged that on August 23, 1991, the defendant knowingly used and carried a firearm during and in relation to a crime of violence, namely the robbery of the Wellsville Bank on August 23, 1991 alleged in Count 1, in violation of 18 U.S.C. The jury convicted the defendant in Count 3 of the lesser included offense of bank robbery in violation of 18 U.S.C. Sec. 2113(a). Mr. Robertson appeals his convictions to this Court and we affirm.

On July 1, 1991, defendant was paroled from the Kansas State Prison at Lansing, where he had been incarcerated for state court convictions. His last meeting with his parole officer, Rose Rice was August 6, 1991. The defendant failed to keep an August 28, 1991 appointment with Rice. On August 23, 1991 a man entered the Wellsville Bank wearing a cap bearing the Los Angeles Raiders logo pulled low, a beige plaid flannel long-sleeved shirt and sunglasses. After the man waited in line for a time, teller Steve Layton waited on him. The man threw a plastic grocery-type bag on the counter with one hand, and placed a sawed-off shotgun on the counter with his other hand. He instructed Layton to fill the bag, which Layton did with a total of $4,827.80. The robber left immediately. Teller Donna Cook also briefly observed the robber.

On August 31, 1991, defendant was arrested in Olathe, Kansas. A sawed-off shotgun was seized at the time, and defendant was incarcerated. At trial, Layton identified the shotgun which had been seized as the same or similar to the one used in the robbery of August 23, 1991. Defendant's bond was posted by an Angela Flowers, an acquaintance of the defendant, on September 3, 1991. Defendant spent that night with Ms. Flowers and her roommate, Carrie Pollock. The defendant persuaded Ms. Pollock to agree to loan him her 1987 silver Nissan Sentra automobile for the following morning. On the morning of September 4, 1991, defendant left the apartment dressed in a light purple shirt, black hat with yellow or gold lettering, dark jeans and black lace-up sneakers. Later that morning, a man dressed in identical fashion robbed the Wellsville Bank. Witnesses testified that it was the same man who had committed the robbery of August 23, 1991. After the robber left the bank, teller Donna Cook followed him and saw him enter a 1987 silver Nissan Sentra and drive away. At trial, Ms. Cook identified the automobile belonging to Carrie Pollock as being the same or similar to the car driven by the robber.

On September 17, 1991, Ruby Robertson, defendant's mother, provided a pair of black lace-up tennis shoes and a black Los Angeles Raiders cap to FBI agents. (R.O.A., Vol. III, at 316-17). The items belonged to her son and were identified at trial as being the same or similar to those worn by the robber on August 23, 1991. Defendant's mother also testified at trial that FBI agents showed her a bank surveillance photograph of the robber and that she identified him as her son. She was again shown such a photograph during trial and again identified her son. (R.O.A., Vol. III, at 321-22).

On September 5, 1991, defendant was involved in a single car accident in a Toyota Celica he had recently purchased. The defendant abandoned the car after the accident. Police found in the car, among other things, a light purple shirt, sunglasses, a black hat with yellow or gold lettering and a pair of dark jeans. At trial, these items were identified as being the same or similar to what the robber had worn on September 4, 1991. On September 6, 1991, police were advised that defendant was being treated at Humana Hospital in Overland Park, Kansas for injuries he had received when he rolled a pickup truck he was driving. The truck had been stolen from a residence approximately four miles northeast from where the Toyota was wrecked. The defendant received a serious head injury and was in a coma for 31 days. Defendant was questioned by FBI agents on October 17, 1991, while recuperating at the Regency Health Care Center in Olathe, Kansas. No Miranda warnings were given. Upon being shown a bank surveillance photograph of the September 4, 1991 robbery, defendant identified himself in the photograph.

Defendant first argues that the trial court erred by admitting the statement of the defendant made in the hospital. He argues that (1) Miranda warnings were necessary and (2) the statement was involuntarily made. This issue was raised by motion to suppress before the trial court, which conducted an evidentiary hearing on April 10, 1992 and issued an order denying the motion on May 7, 1992. In reviewing the denial of a defendant's motion to suppress evidence, we accept the trial court's findings of fact unless clearly erroneous, and the evidence is viewed in the light most favorable to the government. United States v. Amos, 984 F.2d 1067, 1073 (10th Cir.1993). Generally, involving motions to suppress evidence in which the government bears the burden of proof, the Supreme Court has held that a preponderance of the evidence standard applies. See, e.g., United States v. Matlock, 415 U.S. 164, 177-78 n. 14, 94 S.Ct. 988, 996-97 n. 14, 39 L.Ed.2d 242 (1974). On the issue of Miranda, the district court concluded "Defendant was not given Miranda warnings because he was not in custody." (R.O.A. Vol. 1, no. 38, p. 2). This Court has reviewed the transcript of the evidentiary hearing. FBI Agent Bouton testified at the hearing that the FBI did not intend to place the defendant in custody at the time of the interview. (R.O.A. Vol. 8, at 8), and the defendant was free to check himself out of the care center. Id. (This latter point was the subject of a factual finding by the district court). This Court has no basis for disputing the credibility determination which the district court obviously made. A person has been taken into police custody whenever he "has been deprived of his freedom of action in any significant way." United States v. Perdue, 8 F.3d 1455, 1463 (10th Cir.1993) (quoting Miranda v. Arizona, 384 U.S. 436, 444, 86 S.Ct. 1602, 1612, 16 L.Ed.2d 694 (1966)). The only relevant inquiry is "how a reasonable man in the suspect's position would have understood his situation." Id. (quoting Berkemer v. McCarty, 468 U.S. 420, 442, 104 S.Ct. 3138, 3151, 82 L.Ed.2d 317 (1984)). The record does not reflect that the agents restrained the defendant's liberty by means of physical force or show of authority. See United States v. Pena, 920 F.2d 1509, 1515 (10th Cir.1990), cert. denied, 501 U.S. 1207, 111 S.Ct. 2802, 115 L.Ed.2d 975 (1991). From the record presented, we conclude that the district court was correct in its conclusion that the defendant was not in custody at the time of the questioning.

As to the issue of voluntariness, it is agreed by the parties that Colorado v. Connelly, 479 U.S. 157, 107 S.Ct. 515, 93 L.Ed.2d 473 (1986) is controlling. In that case, a man was compelled by "voices" to confess a crime to the police without any prompting on the authorities' part. The Supreme Court held that while the confessant's mental condition is a relevant inquiry, it does not conclude the due process analysis. Rather, "coercive police activity is a necessary predicate to the finding that a confession is not 'voluntary' ". Id. at 167, 107 S.Ct. at 522 (emphasis added). In other words, the police must somehow overreach by exploiting a weakness or condition known to exist. United States v. Guerro, 983 F.2d 1001, 1004 (10th Cir.1993). The district court accepted as credible Agent Bouton's testimony that the defendant seemed responsive and coherent when he was asked about himself, his relatives and the geographical area. Agent Bouton conceded that the defendant stated that he believed he had been in the hospital for five years, and that the defendant gave his age as 27 when in fact he was 38 years old at the time. (The district court's order contains a typographical error at page 2, stating that the defendant was 28 years old at the time of the interview). Agent Bouton further testified that he had spoken to a social worker familiar with the case prior to the interview, defendant's doctor apparently being unavailable, and learned that the defendant was taking no medication which would affect his mental faculties. Agent Bouton further acknowledged that some 12 days after the interview, the defendant was evaluated at the Federal Correctional Institution at Springfield, Missouri and that the report issued by the doctors there stated, among other things, that the defendant became easily confused when answering questions. The district court also took note of the Springfield report, but accepted the credibility of Agent Bouton's testimony that the defendant seemed lucid when answering his questions, except with relation to matters of time (length in hospital, age, etc.).

On appeal, we review the issue of voluntariness de novo, but the factual findings of the district court are reviewed under the clearly erroneous standard. Guerro, 983 F.2d at 1003. The district court's factual findings are based largely upon the credibility of Agent...