U.S. v. Scalf

• Decision Date: 27 May 1983
• Docket Number: No. 81-1634,81-1634
• Citation: 708 F.2d 1540
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. George A. SCALF, Jr., Defendant-Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 1540

708 F.2d 1540

UNITED STATES of America, Plaintiff-Appellee, v. George A. SCALF, Jr., Defendant-Appellant.

No. 81-1634.

United States Court of Appeals Tenth Circuit.

May 27, 1983.

Thomas S. Bala, Oklahoma City, Okl. (Robert L. Wheeler, Oklahoma City, Okl., on brief), for defendant-appellant.

John E. Green, Acting U.S. Atty., Oklahoma City, Okl., for plaintiff-appellee.

Before SETH, Chief Judge, HOLLOWAY, Circuit Judge, and ARRAJ, District Judge. ^*

PER CURIAM.

George A. Scalf, Jr. was convicted of aiding and abetting the armed robbery of a federally insured savings and loan association and of putting a life in jeopardy in so doing, in violation of 18 U.S.C. sections 2 and 2113(a) and (d). ¹ He was sentenced to fifteen years' imprisonment.

On appeal Scalf contends that (1) statements he made to F.B.I. agents after his arrest and his request for counsel should have been suppressed from evidence; (2) the gun used in the robbery was a fruit of unlawful interrogation and also should have been suppressed; (3) the trial court erred by failing to instruct that an aider and abettor of armed bank robbery must have known the principal was armed and by failing to instruct the jury on the lesser included offense of bank larceny; and (4) the trial court erred in denying his motion for a severance or a new trial.

Background

On February 25, 1981, appellant and his codefendant, Paul M. Skaggs, entered the May Avenue branch office of Local Federal Savings and Loan Association in Oklahoma City, Oklahoma. Skaggs approached a teller, pulled out a gun, and told her to give him all of the money in her drawer. While she stood there hesitating, Skaggs reached over the counter and grabbed the money, which included "bait money" (bills whose serial numbers are recorded for later identification). During this time appellant walked up to an adjacent teller's station and asked for coin wrappers in an effort to divert her attention away from the robbery. After Skaggs had obtained the money, Scalf followed him out the door. They left the area in a car that had been parked nearby.

The robbery was promptly reported to the authorities. A short time later, appellant Scalf, codefendant Skaggs, and two teenage girls were seen driving west on Highway # 3 in the getaway car. Oklahoma Highway Patrol Lieutenant Kirk and Trooper Bradley, in separate vehicles, had received a report of the robbery and a description of the getaway car. After spotting the car, Lieutenant Kirk read its license plate number and by radio requested a report on it. He was advised that the license plate was stolen and that there should be four occupants in the car who were wanted on a felony warrant and considered armed and dangerous.

Bradley and Kirk stopped the car, placed Scalf and Skaggs under arrest, and read them their Miranda rights. In searching for weapons, the officers found a roll of bills later identified as money taken in the robbery, but found no gun. At this time both appellant and Skaggs requested counsel. Other law enforcement officers then arrived, and members of the Oklahoma Police Department escorted the defendants to the Oklahoma County Jail. No interrogation was conducted up to this time.

After being booked, the defendants were taken to an interview room, where they were met by F.B.I. Special Agents Choney and Young. The details of that meeting, particularly the sequence of events, are disputed. Additionally, the record is entirely ambiguous as to whether the defendants were interviewed separately or together. However, it is clear that Mr. Choney interrogated both of them, and that at some point during the interrogation both defendants signed a waiver of rights and confessed to having committed the robbery. During the interrogation, Choney learned that the gun used in the robbery had been left under the dashboard of the getaway car. Choney signed an affidavit detailing the circumstances of the robbery and the subsequent investigation. Based upon the affidavit a warrant to search the car was issued, and the gun was found. Scalf and Skaggs were tried together on charges of armed bank robbery.

Appellant Scalf moved to suppress from evidence his confession, his written waiver of rights, the stolen money, and the gun. A full hearing was held at which the trial court denied the motion in its entirety. The court found that Scalf's waiver and confession were made voluntarily and that the physical evidence was not obtained by means of an unreasonable search and seizure. On appeal, Scalf challenges this ruling, except as it regards the seizure of the currency, and assigns as error the instructions to the jury and the denial of his motion for severance or a new trial.

Admissibility of the Confession

Appellant contends that the present case is governed by the rule articulated in Edwards v. Arizona, 451 U.S. 477, 101 S.Ct. 1880, 68 L.Ed.2d 378 (1981). In Edwards, the defendant was arrested, taken to the police station and there advised of his Miranda rights and questioned. Having been told that another suspect had implicated him in the crime, Edwards denied involvement and gave a statement presenting an alibi defense. He then sought to "make a deal." Later he said "I want an attorney before making a deal." At that point questioning ceased and he was taken to the county jail.

The next morning, two detectives, colleagues of the officer who had interrogated him earlier, came to the jail to see Edwards. Edwards told the guard he did not want to see anyone, and the guard replied that he "had to" talk with the detectives. The detectives identified themselves, stated that they wanted to talk to him, and read him his Miranda rights. Edwards asked to hear the tape recorded statement of his alleged accomplice, and it was played for him. He then implicated himself in the crime.

The Supreme Court reversed the Arizona Supreme Court's ruling that Edwards had waived his right to counsel and his right to remain silent. This result was expressly derived from the opinion in Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), which declared that a suspect has a Fifth and Fourteenth Amendment right to have counsel present during custodial interrogation, and that if the suspect requests counsel, "the interrogation must cease until an attorney is present." Id. at 474, 86 S.Ct. at 1628, 16 L.Ed.2d at 723. The Court also reiterated the rule that a waiver of counsel must not only be voluntary, but must also constitute a knowing and intelligent relinquishment of a known right or privilege, and that this matter depends upon the particular facts and circumstances of a case, including the background, experience, and conduct of the accused. Edwards, supra, 451 U.S. at 482, 101 S.Ct. at 1883-84, 68 L.Ed.2d at 385.

The Court went further to declare:

[W]e now hold that when an accused has invoked his right to have counsel present during custodial interrogation, a valid waiver of that right cannot be established by showing only that he responded to further police-initiated custodial interrogation even if he has been advised of his rights. We further hold that an accused, such as Edwards, having expressed his desire to deal with the police only through counsel, is not subject to further interrogation by the authorities until counsel has been made available to him, unless the accused himself initiates further communication, exchanges or conversations with the police.

451 U.S. at 484-85, 101 S.Ct. at 1884-85, 68 L.Ed.2d at 386 (footnote omitted). In the present case, it is clear that after Scalf invoked his right to counsel, he was subjected to further interrogation before he was provided with counsel, and that this interrogation was not the result of a communication, conversation, or exchange initiated by him.

The government contends first that Edwards should not be given retrospective application. (Scalf was convicted on April 14, 1981, and Edwards was not decided until May 18, 1981.) This contention is without merit because the Edwards opinion does not announce a new rule of law, but merely clarifies principles announced long ago in Miranda, supra. U.S. ex rel. Kimes v. Greer, 541 F.Supp. 632, 634-35 (N.D.Ill.1982); Connecticut v. Acquin, 187 Conn. 647, 448 A.2d 163, 174 (1982), petition for cert. filed, 51 U.S.L.W. 3461 (Nov. 18, 1982) (No. 82-896); Michigan v. Paintman, 412 Mich. 518, 315 N.W.2d 418, 422 (1982), cert. denied, 456 U.S. 995, 102 S.Ct. 2280, 73 L.Ed.2d 1292 (1982); Minnesota v. Brown, 317 N.W.2d 714, 715 (Minn.1982), petition for cert. filed, 51 U.S.L.W. 3009 (July 1, 1982) (No. 82-1); Oregon v. Taylor, 56 Or.App. 703, 643 P.2d 379, 382 (1982). Contra Louisiana v. Shea, 421 So.2d 200, 208-10 (La.1982). The language of the Edwards opinion makes it difficult to conclude otherwise. That Edwards is to be given retrospective application is made all the more clear by the Supreme Court's remand, within a week after handing down Edwards, of six cases for reconsideration in light of that opinion. Louisiana v. Shea, supra, at 212 (Calogero, J., dissenting); Minnesota v. Brown, supra, at 715.

The government also contends that Edwards is inapplicable because Scalf's request for an attorney was directed to state patrolmen, and not to the F.B.I. agents who later interrogated him. Although it does not affirmatively appear in the trial record, the government asserts in its brief that the agents were unaware of the request for counsel when they questioned Scalf. In contrast, the interrogators who questioned Edwards were in both instances from the same police force. We are not persuaded by this distinction.

A factual situation similar to the present one was considered in White v. Finkbeiner, 687 F.2d 885 (7th Cir.1982) (White III ), petition for cert. filed sub nom. Fairman v. White, 51 U.S.L.W. 3001 (July 6, 1982) (No. 81-2340). ² The defendant White was read his Miranda rights by a Captain Johnson at the police station shortly after being...