U.S. v. Short

• Decision Date: 31 October 1991
• Docket Number: Nos. 90-4077 and 90-4085,s. 90-4077 and 90-4085
• Citation: 947 F.2d 1445
• Parties: 34 Fed. R. Evid. Serv. 326 UNITED STATES of America, Plaintiff-Appellee and Cross-Appellant, v. Randolph SHORT, Defendant-Appellant and Cross-Appellee.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 1445

947 F.2d 1445

34 Fed. R. Evid. Serv. 326

UNITED STATES of America, Plaintiff-Appellee and Cross-Appellant, v. Randolph SHORT, Defendant-Appellant and Cross-Appellee.

Nos. 90-4077 and 90-4085.

United States Court of Appeals Tenth Circuit.

Oct. 31, 1991.

Wayne T. Dance, Asst. U.S. Atty. (Dee V. Benson, U.S. Atty. with him on the briefs), Salt Lake City, Utah, for plaintiff-appellee and cross-appellant.

Craig S. Cook, Salt Lake City, Utah, for defendant-appellant and cross-appellee.

Before HOLLOWAY and BRORBY, Circuit Judges, and BRIMMER, ^* Chief District Judge.

BRORBY, Circuit Judge.

This appeal and cross appeal stem from Randolph Short's (Defendant or Short) federal conviction in Utah for manufacturing methamphetamine. ¹ Defendant appeals alleging the district court erred by failing to suppress incriminating statements Defendant made following his arrest. He also claims the district court improperly allowed the jury to be told of his prior felony drug conviction. Both Defendant and the United States (Government) appeal the district court's sentencing decisions made following Defendant's conviction.

I.

On Sunday, August 20, 1989, at approximately 10:15 p.m., federal Drug Enforcement Administration (DEA) officers, in cooperation with state and local police, executed a search warrant at Defendant's Salt Lake City area home. The search of Defendant's home was part of a plan to simultaneously search several locations in the Salt Lake City area for evidence of illegal drug activity. The searches were coordinated so the suspects could not warn each other. Once inside, police found evidence of a methamphetamine manufacturing lab in Defendant's residence. While Short's home was searched police detained several individuals including Defendant, his 11-year-old daughter Angela, Defendant's girlfriend, and another man.

The testimony concerning what happened during the police raid and immediately after is conflicting. Defendant was injured in a motorcycle accident nine days before the raid; he was hospitalized for approximately five days. On the night of the raid both his arms were still in casts due to injuries that included a compound wrist fracture and a broken finger. Defendant also suffered a broken nose and was wearing a bandage due to an additional facial injury that required 100 stitches. His right leg was also injured.

Defendant testified that on the night of the raid he was taking doctor-prescribed Percodan and Hydracodeine every four hours for pain. Defendant claimed he was in a great deal of pain and misery due to his injuries and the pain medication relaxed him, made him forget where he was, and allowed him to sleep. Defendant's girlfriend testified that on the day of the raid Defendant was sleeping a lot and awoke only to eat and take his pain pills. She also testified that when the police arrived they were unable to properly handcuff Defendant because of his casts. She claimed they handcuffed his right arm to his left foot, requiring him to hop around on his injured leg. Defendant agreed the way the police initially handcuffed him made it difficult for him to move and he had to hop around on his right leg.

As previously mentioned, the testimony conflicts. While testimony offered by Defendant indicates he was in physical pain and was mentally impaired due to medication, the testimony of law enforcement agents is of a different view. According to them, Defendant was coherent and in control of his mental faculties. They felt there was no reason to believe he was incoherent or that he did not understand what was being said to him. For example, one of the officers testified Defendant realized when police were handling a container of hydriodic acid, and he warned officers to be "very careful with that stuff because ... it was very harmful." This officer admitted Defendant looked like he was in pain, "but he never stated he was in an overabundance of pain whatsoever." The officer noticed Defendant was "handcuffed rather strangely." But he also mentioned the police eventually found another more comfortable way to handcuff him.

Defendant acknowledged the way he was handcuffed was changed after he "kept complaining about being in pain because of the way I was handcuffed." Defendant further testified he was given two pain pills after he complained about being in pain although at first his request was refused. The officer who Defendant said gave him the pills did not recall doing so.

In addition, Defendant was concerned about his 11-year-old daughter and requested she be released. It is undisputed she was handcuffed during the raid, although the testimony varies on how long she was handcuffed. The defense says she was handcuffed for four hours, while the police maintain the handcuffs were removed around midnight, which is less than two hours after the raid began. During the trial the girl testified she cried when she was handcuffed, but also remembered she was given a blanket, allowed to sit near her father and watched a movie with a female police officer. The girl's mother testified at the suppression hearing and reported her daughter suffered from nightmares and eating difficulties and was in therapy following the raid.

Defendant asserts he "complained numerous times" about having his daughter in handcuffs because she "had nothing to do with it." Defendant testified he was told things would drag out until he talked to the police and that it was his impression "the quicker that everything went, the quicker we would be over and the quicker she could be released." Defendant said it was "hurting me inside" about what was happening to his daughter and his main concern was his daughter's well-being.

The police have a different story. The federal agent in charge who spoke to Defendant said he wanted to release the girl and said he answered Defendant's concerns by telling him his daughter would be released at the "appropriate time." The state officer who questioned Defendant remembered Defendant was concerned about his daughter. He also told Defendant it would be "just a short period of time ... before we were able to not only release her, but have someone either pick her up or take her to a location, and I assured him that would be done." Later, when Defendant asked him about a comment he heard indicating the girl would not be released, the officer again told Defendant there was a "high probability" she would be let go.

II.

On appeal, Defendant objects to the district court's refusal to suppress incriminating statements Defendant made to two officers shortly after the raid. According to Defendant, "[t]he physical pain factor and the taking of drugs should itself eliminate any finding of voluntariness of Defendant's statements." He further asserts there can be no question his statements were coerced if his physical condition is considered along with the "psychological pressure" he suffered because his daughter was also detained. These arguments allege Defendant's statements were coerced in violation of the Fifth Amendment.

Some of the incriminating statements--which amount to a confession of being involved in illegal drug activity--were allegedly made by Defendant around 3:00 a.m. when he spoke to DEA Agent Fillmore. The agent testified at the suppression hearing and said Defendant told him he knew about the methamphetamine in his house and admitted to processing some of the chemicals in the lab so he could sell methamphetamine. Officer Sawaya, a detective in the Salt Lake City police narcotics unit talked separately with Defendant. He testified Defendant said he was paid by another individual to live in the house and to run interference by making noise when others were inside "cooking" methamphetamine. Both men claimed Defendant was advised of his constitutional rights and waived them before speaking. During the suppression hearing Defendant testified he did not know there was a methamphetamine lab in the house. He testified an acquaintance was using the room where the lab was for storage and that the room was locked by that individual. He admitted to storing some old work clothes and business papers in the room, but maintained the lab was set up without his knowledge. Defendant said the acquaintance started using the room while he was out of town and said the room had a lock on the door when he returned from his trip.

Incriminating statements obtained by government acts, threats, or promises that permit the defendant's will to be overborne are coerced confessions running afoul of the Fifth Amendment and are inadmissible at trial as evidence of guilt. Malloy v. Hogan, 378 U.S. 1, 7, 84 S.Ct. 1489, 1493, 12 L.Ed.2d 653 (1964) (citing Bram v. United States, 168 U.S. 532, 542, 18 S.Ct. 183, 186, 42 L.Ed. 568 (1897)); United States v. Fountain, 776 F.2d 878, 885 (10th Cir.1985). In determining whether a particular confession is coerced, some factors we consider include the intelligence and education of the individual being questioned, whether he was advised of his constitutional rights, the length of detention, the prolonged nature of the questioning, and whether the individual was physically punished. Schneckloth v. Bustamonte, 412 U.S. 218, 226, 93 S.Ct. 2041, 2047, 36 L.Ed.2d 854 (1973). Since no single factor is determinative, we must be mindful of all the surrounding circumstances, including the defendant's characteristics. Id.; United States v. Falcon, 766 F.2d 1469, 1476 (10th Cir.1985). The ultimate issue of voluntariness is a legal question reviewable de novo, United States v. Fraction, 795 F.2d 12, 14 (3d Cir.1986), although the trial court's rulings regarding "subsidiary factual questions, such as whether the police intimidated or threatened a suspect or whether the suspect was particularly susceptible to police coercion, are subject to review under the clearly erroneous standard." United States v. Chalan, 812 F.2d 1302, 1307-08 (10th Cir.1987). In a case where a defendant appeals...