U.S. v. Thompson

• Citation: 866 F.2d 268
• Decision Date: 30 January 1989
• Docket Number: Nos. 88-5092,88-5093,s. 88-5092
• Parties: UNITED STATES of America, Appellee, v. Eric John THOMPSON, Appellant. UNITED STATES of America, Appellee, v. Tammy Ann LEAVOY, Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (8th Circuit)

Page 268

866 F.2d 268

UNITED STATES of America, Appellee, v. Eric John THOMPSON, Appellant.

UNITED STATES of America, Appellee, v. Tammy Ann LEAVOY, Appellant.

Nos. 88-5092, 88-5093.

United States Court of Appeals,

Eighth Circuit.

Submitted Jan. 11, 1989.

Decided Jan. 30, 1989.

Rehearing Denied in No. 88-5092 March 10, 1989.

Jonathan E. Fruchtman, Minneapolis, Minn., for Thompson.

James H. Ranum, Minneapolis, Minn., for Leavoy.

Douglas Peterson, Asst. U.S. Atty., Minneapolis, Minn., for U.S.

Before LAY, Chief Judge, GIBSON, Circuit Judge, and NICHOL, ^* Senior District Judge.

NICHOL, Senior District Judge

On November 24, 1987, a jury convicted Eric John Thompson and Tammy Ann Leavoy for offenses relating to armed bank robbery. ¹ Thompson was convicted on four counts in violation of 18 U.S.C. Secs. 2113(a), 2113(d), 2(a), 924(c), 922(g), 924(a)(1)(B) and 2312. Leavoy was convicted on one count in violation of 18 U.S.C. Sec. 2113. Both defendants appeal.

Thompson argues that his motion to suppress post-arrest statements was improperly denied. ² He also challenges the district court's removal of a juror. Leavoy argues that her case should have been dismissed because the seventy-day period of the Speedy Trial Act elapsed. Having considered these consolidated appeals, we affirm both convictions.

On the morning of June 8, 1987, Eric John Thompson and Tammy Ann Leavoy worked as a team to rob the Eastwood State Bank in Eyota, Minnesota. Thompson entered the bank, was led into a bank employee's office, put on a nylon stocking mask, drew a gun and announced the robbery. Thompson absconded with $19,615.

He met Leavoy who had been waiting with a stolen mini-van parked behind the bank. ³ Leavoy had earlier "cased" the bank for Thompson by entering the bank under the pretense of exchanging small bills for large bills. During the robbery, witnesses observed Leavoy pacing nervously beside the getaway mini-van.

Later that evening law enforcement officers located the getaway mini-van behind a hotel in Rochester, Minnesota. After a high speed chase that ended in a crowded shopping mall at 8:30 p.m., Thompson and Leavoy were arrested and read their Miranda warnings.

THOMPSON'S APPEAL

1. Facts

Upon receiving the Miranda warnings from FBI Agent Price, Thompson stated that he understood his rights. When asked if he was hurt, Thompson replied no. Thompson asked that the handcuffs be loosened, which they were. Thompson stated that prior to talking to anyone, he would "sleep on it" before he was interviewed and would talk "tomorrow." Agent Price then asked, "Where are you from?" Thompson replied that he was from Missouri and volunteered the statement "I'll wait a little while before I'm interviewed." Agent Price terminated all questioning at this point.

Thompson was taken to the Law Enforcement Center (LEC) in Rochester where he was interviewed again shortly after 9:00 p.m. Before the interview began, Thompson was given a "Statement of Miranda Rights" form by Agent Price. Thompson read the statement aloud, stated he understood his rights and knew from prior time at a penitentiary that his statements could be used against him. At 9:10 p.m. Thompson signed and dated a waiver of rights form.

In the ensuing interview, Thompson provided a signed statement incriminating himself in the armed robbery. He also signed a consent form authorizing the search of a hotel room. Two subsequent interviews were conducted the same evening. Before each interview Thompson was advised of his constitutional rights and signed a waiver of rights form. Thompson never asked to stop any of the interviews, nor did he ask for counsel.

Agent Price assessed Thompson's demeanor during the course of the evening as "very serious, relaxed, thoughtful." Thompson did not appear to be hurt or disoriented and did appear to be sober. However, Thompson indicated he had taken 30 dilaudid pills earlier that day after initially stating he was not under the influence of drugs or alcohol. No threats or promises were made to induce a statement.

Thompson's jury trial began on November 12, 1987. The trial was delayed at Thompson's request and resumed on November 19th. After the close of evidence and prior to closing arguments a juror approached the judge and expressed his personal discomfort about sitting on the jury. The juror was a Vietnam veteran as was Thompson. The juror indicated in chambers to the judge and counsel for both sides his sympathy for Thompson and the personal difficulties he was having viewing the evidence objectively. As a result, the judge removed the juror, who expressed relief, without any objection from counsel and replaced him with an alternate. The jury convicted Thompson on November 24, 1987.

2. Assertion of the Right to Remain Silent

The first issue is whether Thompson effectively asserted his right to remain silent during the initial conversation with Agent Price when the defendant said he would sleep on it and would talk tomorrow, then later said "I'll wait a little while before I'm interviewed." Thompson does not challenge the sufficiency of the Miranda warnings given by Agent Price, or the voluntariness of the statements made at the LEC. Instead, Thompson argues that he asserted his right to remain silent during the initial conversation with Agent Price, and once there is an assertion of the right to remain silent it must be scrupulously honored. Michigan v. Mosley, 423 U.S. 96, 96 S.Ct. 321, 46 L.Ed.2d313 (1975). Thompson further contends that Agent Price did not scrupulously honor his right to remain silent, and thus his incriminating statements at the LEC are inadmissible. We disagree and find that Thompson did not assert his right to remain silent under Miranda sufficient to trigger the application of Michigan v. Mosley.

The Supreme Court announced in Miranda v. Arizona, 384 U.S. 436, 473, 86 S.Ct. 1602, 1627, 16 L.Ed.2d 694 (1966), that "[i]f the individual indicates in any manner, at any time prior to or during questioning that he wishes to remain silent, the interrogation must cease." The Court further clarified this rule by explaining in Michigan v. Mosley that "the admissibility of statements obtained after the person in custody has decided to remain silent depends under Miranda on whether his right to cut off questioning was 'scrupulously honored.' " 96 S.Ct. at 326 [emphasis added].

Before we embark on an analysis of whether Thompson's right to remain silent was scrupulously honored, we must first determine whether he made a decision to remain silent as prescribed in Miranda and Mosley. To determine whether Thompson asserted his right to remain silent we focus on the statements made by Thompson immediately after receiving Miranda warnings and prior to interrogation at the LEC.

The first statement made by Thompson upon receiving the Miranda warnings was that he would "sleep on it" before being interviewed and would talk "tomorrow." The parties disagree on whether this statement, standing alone, is a sufficient assertion of the right to remain silent. This disagreement is immaterial because in deciding if the right to remain silent was asserted we must consider all that Thompson said after the warnings were given. This includes taking into account Thompson's final "I'll wait a little while ..." statement at the scene of the arrest. Under the circumstances of this case, we find Thompson's latter comment, "I'll wait a little while before I'm interviewed," volunteered after responding to Agent Price's request for routine personal information, constitutes an effective reversal of Thompson's prior request to defer questioning until "tomorrow." Thus, any decision to remain silent, if it was made at all, was subsequently reversed.

The actions of Agent Price were respectful of the rights of the defendant. There is nothing in the record that suggests Agent Price employed persistent efforts or trickery to wear down the defendant's resistance and make him change his mind. Compare Mosley, 96 S.Ct. at 327; Jackson v. Wyrick, 730 F.2d 1177, 1180 (8th Cir.1984), cert. denied 469 U.S. 849, 105 S.Ct. 167, 83 L.Ed.2d 102 (1984); Lindsay v. U.S., 542 F.2d 755, 757 (8th Cir.1976); U.S. v. Hernandez, 574 F.2d 1362, 1370 (5th Cir.1978). Agent Price did ask the defendant "Where are you from?" after Thompson stated he would sleep on it and would talk tomorrow. However, this is not fatal because the question related to only routine personal identification information which is permissible. U.S. v. Turner, 565 F.2d 539, 541 (8th Cir.1977). When Thompson volunteered the "I'll wait a little while ..." statement, the agent ceased questioning altogether.

Questioning did not resume until approximately one-half hour later at the LEC. Prior to the start of questioning, Thompson read aloud a fresh set of Miranda warnings, indicated he understood them and signed a waiver of rights form. If Thompson wished to invoke his right to remain silent, he could have done so here. Instead, after the passage of a little while from the time of his initial statements upon arrest, he chose to make a statement after being fully advised of and voluntarily waiving his constitutional right to remain silent. The subsequent signing of the waiver at the LEC provides additional evidence that Thompson reversed his prior request to defer questioning until "tomorrow." Cf. Lindsay v. U.S., supra at 757. ⁴ Thompson's "very serious, relaxed, thoughtful" demeanor, his prior experience with the criminal justice system ⁵ and his signing of the consent to search form provides further proof that he was capable of and did make an informed and intelligent decision to talk.

The statements made by Thompson do not represent a clear, consistent expression of a desire to remain silent. But Cf. Michigan v. Mosley, 96 S.Ct. at 323 (the defendant unequivocally stated he did not want to answer any more questions); U.S. v. Hernandez, supra at 1365 (the defendant repeatedly declined to speak...