U.S. v. Stewart, 77-5703

• Decision Date: 05 July 1978
• Docket Number: No. 77-5703,77-5703
• Citation: 576 F.2d 50
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Bernard STEWART, Defendant-Appellant. Summary Calendar. *
• Court: U.S. Court of Appeals — Fifth Circuit

Page 50

576 F.2d 50

UNITED STATES of America, Plaintiff-Appellee, v. Bernard STEWART, Defendant-Appellant.

No. 77-5703

Summary Calendar. ^*

United States Court of Appeals, Fifth Circuit.

July 5, 1978.

Theodore J. Sakowitz, Federal Public Defender, Joel Kaplan, Asst. Federal Public Defender, Miami, Fla., for defendant-appellant.

Jack V. Eskenazi, U. S. Atty., C. Wesley G. Currier, Asst. U. S. Atty., Miami, Fla., for plaintiff-appellee.

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

Before BROWN, Chief Judge, COLEMAN and VANCE, Circuit Judges.

JOHN R. BROWN, Chief Judge:

Bernard Stewart was convicted by a jury of burglarizing a Federal Credit Union in violation of 18 U.S.C.A. § 2113(a). He was given a three-year sentence. Stewart appeals from the denial of a motion to suppress a confession he signed after having been given incomplete Miranda warnings. That confession, read in full to the jury after two timely objections, contained not only a step-by-step account of the burglary, but also an admission of a prior conviction for armed robbery. We reverse.

Suppression Hearing And Trial

The suppression hearing was held just before the trial began. Agent Worochock of the Office of Naval Intelligence, who had conducted the interrogation and had typed the confession, testified to the circumstances under which Stewart's statement was recorded. ¹ Asked if Stewart was free to go during the interrogation, Worochock said, "No." Tr. 42. ² The confession read in part as follows:

I, Bernard Stewart . . . have been advised by Special Agent . . . Worochock . . .

(1) That I have the right to remain silent and make no statement at all;

(2) That any statement I do make may be used as evidence against me in a Court of Law;

(3) That I have the right to consult with a lawyer, if I desire;

(4) That I have the right to have my lawyer present during this interview; and

(5) That I am not in custody, and that I am free to leave or terminate this interview at any time.

Stewart initialed each numbered item. It is undisputed that he was never advised that he had a right to have an attorney present during the interrogation and that counsel would be appointed for him before the hearing if he was unable to afford one. ³

At the conclusion of the testimony, the District Court, in denying the motion to suppress, stated:

. . . Gentlemen, I don't really want any argument. I think I am relatively familiar with the controlling law.

The Court finds that the warnings required by Miranda were given; that the defendant knowingly and intelligently waived his privilege against self-incrimination and to have an attorney present; that he voluntarily and intelligently waived his rights to have retained or appointed counsel present at any interrogation and that any statement or confession made by him was freely and voluntarily given. . . .

Tr. 44 (emphasis added).

Agent Worochock thereafter testified before the jury during the government's case-in-chief. As government counsel proposed to publish ⁴ the confession to the jury, this exchange occurred:

MR. KAPLAN: Your Honor, I would object to the introduction of the statement on two grounds.

I would like to approach the Bench.

THE COURT: I am going to overrule the objection, and I am going to admit the document in evidence as Government's Exhibit No. 1, and permit counsel, if he wishes, to publish it to the jury.

Tr. 56 (emphasis added).

As Worochock was reading the confession to the jury, the following transpired:

(WOROCHOCK): " * * * The crowbar, screwdriver, cloth sack and money from the cash box have been recovered from the room where he (Stewart's accomplice) and I were hiding.

"I was convicted "

MR. KAPLAN: Objection to the publication of the next sentence.

THE COURT: Overruled.

A "I was convicted and sentenced for armed robbery in Key West during 1975. As a result of that conviction I served fifteen months in Lake Butler, Florida, penitentiary.

"I have read, understand, and initialed all corrections in the foregoing statements, which consist of two typewritten pages, typed in my presence and at my request by Mr. Worochock, and swear that it is true and correct to the best of my knowledge and belief." / s/ Bernard Stewart.

THE COURT: Just a moment, please.

Ladies and gentlemen, that part which the agent read about this defendant's prior conviction has nothing whatsoever to do with his guilt or innocence in this particular case. And so, in determining that, you are to disregard it. It has evidentiary value only if the defendant should take the stand. If he takes the stand and testifies, then it is a matter which affects his credibility. Otherwise, in arriving at your decision as to his guilt or innocence in this particular matter, you are to disregard that prior conviction. ⁵

Double Whammy

In Miranda v. Arizona, 1966, 384 U.S. 436, 472-73, 86 S.Ct. 1602, 1626-27, 16 L.Ed.2d 694, the Supreme Court discussed the necessity for ensuring that Fifth Amendment safeguards were made available to indigents If an individual indicates that he wishes the assistance of counsel before any interrogation occurs, the authorities cannot rationally ignore or deny his request on the basis that the individual does not have or cannot afford a retained attorney. The financial ability of the individual has no relationship to the scope of the rights involved here. The privilege against self-incrimination secured by the Constitution applies to all individuals. The need for counsel in order to protect the privilege exists for the indigent as well as the affluent. In fact, were we to limit these constitutional rights to those who can retain an attorney, our decisions today would be of little significance. The cases before us as well as the vast majority of confession cases with which we have dealt in the past involve those unable to retain counsel. While authorities are not required to relieve the accused of his poverty, they have the obligation not to take advantage of indigence in the administration of justice. Denial of counsel to the indigent at the time of interrogation while allowing an attorney to those who can afford one would be no more supportable by reason or logic than the similar situation at trial and on appeal struck down in Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963), and Douglas v. California, 372 U.S. 353, 83 S.Ct. 814, 9 L.Ed.2d 811 (1963). ⁶

Miranda also established the rule that the warnings required and the waiver necessary to accord with its standards were "prerequisites to the admissibility of any statement made by a defendant." Id. at 476, 86 S.Ct. at 1629. "(U)nless and until such warnings . . . are demonstrated by the prosecution at trial, no evidence obtained as a result of interrogation can be used against him." Id. at 479, 86 S.Ct. at 1630.

It is true that the absolutism of the last-quoted statement has been somewhat diluted. In Harris v. New York, 1971, 401 U.S. 222, 91 S.Ct. 643, 28 L.Ed.2d 1, the Court held that statements given to the police without a warning that the defendant was entitled to appointed counsel could be used to impeach the defendant's direct testimony at trial. But the Court added, "Miranda barred the prosecution from making its case with statements of an accused made while in custody prior to having or effectively waiving counsel." Id. at 224, 91 S.Ct. at 645. See also Oregon v. Hass, 1975, 420 U.S. 714, 95 S.Ct. 1215, 43 L.Ed.2d 570 (inculpatory information, given after full Miranda warnings and defendant's request to call attorney, held admissible solely for impeachment purposes after defendant takes the stand and testifies to the contrary). In Michigan v. Tucker, 1974, 417 U.S. 433, 94 S.Ct. 2357, 41 L.Ed.2d 182, the testimony of a third party identified in defendant's exculpatory statement without a warning of his right to appointment of counsel if he was indigent was held admissible when the interrogation took place prior to, but the trial occurred after, the Miranda decision. Despite this dilution, we know of no case in which the Supreme Court has sanctioned the admissibility of a defendant's in-custody confession ⁷ during the government's case-in-chief in the absence of full warnings or a showing of effective waiver. Indeed, the Court in Tucker, supra, premised the holding in part on the fact reemphasized several times that the defendant's own statements had been properly excluded from evidence. 417 U.S. at 448, 449, 450, 451, 452, 94 S.Ct. 2357. ⁸ In this connection, see the post-Miranda case of Orozco v. Texas, 394 U.S. 324, 89 S.Ct. 1095, 22 L.Ed.2d 311. There the Court reversed a conviction for murder when a police officer related to the jury during the government's case the defendant's incriminating statements which had been elicited by the police at the defendant's home without informing him of the rights to remain silent, to have a lawyer's advice before making a statement, and to have a lawyer appointed to assist him if he could not afford one.

Following Miranda's command, the Fifth Circuit in a long line of cases has reversed convictions when defendants' in-custody statements or confessions given in the absence of any one or all of the Miranda warnings have been admitted into evidence during a jury trial. Fendley v. United States, 5 Cir., 1967, 384 F.2d 923 (although defendant was informed of right to court-appointed counsel, he was not advised of right to have court-appointed counsel present during interrogation); Windsor v. United States, 5 Cir., 1968, 389 F.2d 530 (failure to advise of right to have a retained or appointed attorney present during interrogation); Cook v. United States, 5 Cir., 1968, 392 F.2d 219 (appropriate warning was not given, citing Fendley, supra ); Montoya v. United States, 5 Cir., 1968, 392 F.2d 731 (failure to advise of right to have counsel provided before making the statements); Chambers v. United States, 5 Cir., 1968, 391 F.2d 455 (failure to advise of...