U.S. v. Thornton

• Decision Date: 01 September 1998
• Docket Number: No. Crim. 97-50021-01.,Crim. 97-50021-01.
• Citation: 17 F.Supp.2d 686
• Parties: UNITED STATES of America, Plaintiff, v. Ervin Junius THORNTON II, Defendant.
• Court: U.S. District Court — Eastern District of Michigan

17 F.Supp.2d 686

UNITED STATES of America, Plaintiff, v. Ervin Junius THORNTON II, Defendant.

No. Crim. 97-50021-01.

United States District Court, E.D. Michigan, Southern Division.

September 1, 1998.

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Saul Green, United States Attorney, Mark C. Jones, Assistant United States Attorney, Flint, MI, for Plaintiff.

William W. Swor, Detroit, MI, for Defendant.

MEMORANDUM OPINION AND ORDER DENYING DEFENDANT'S MOTION TO SUPPRESS OUT OF COURT STATEMENT

GADOLA, District Judge.

Defendant Ervin Junius Thornton II has filed a motion to suppress his alleged out of court statements made to a law enforcement officer. Defendant argues that these statements should be suppressed at trial due to a violation of his Fifth and Sixth Amendment rights. On July 23, 24 and August 18, 1998, this Court held an evidentiary hearing on defendant's motion to suppress. For the reasons set forth below, this Court will deny defendant's motion to suppress out of court statements.

FACTUAL BACKGROUND

On September 21, 1995, Lee Davis Strickland, his sister, Fanny Strickland, and one Eric Williams exited the restaurant owned by Mr. Strickland and entered into Mr. Strickland's automobile. At that moment at least two individuals approached from the side of the building and fired numerous times into the car, killing Strickland and his sister. See Testimony of Lt. Koger, Detention Hearing held on May 27, 1997, p. 6. Eric Williams was wounded but survived the shooting. The weapon used was later determined to be a nine millimeter handgun. There is some testimony that the homicides were motivated by Strickland's indictment in a drug-related matter, specifically, by the fear that Strickland would implicate others and assist the prosecution. See Testimony of Lt. Koger, Detention Hearing held on May 27, 1997, p. 8.

On May 21, 1997, a grand jury of the United States District Court for the Eastern District of Michigan issued an eight-count indictment charging defendant Thornton with the following crimes: one count of conspiracy to distribute controlled substances in violation of 21 U.S.C. §§ 841(a)(1) and 846, one count of conspiracy to commit firearm murder during and in relation to a drug trafficking crime in violation of 18 U.S.C. § 924(j) and 924(c), two counts of firearm murder during or in relation to a drug trafficking crime in violation of 18 U.S.C. § 924(j)(1), one count of use of a firearm during and in relation to a felony drug offense in violation of 18 U.S.C. § 924(c), one count of distribution of cocaine in violation of 21 U.S.C. § 841(a)(1), two counts of possession with intent to distribute cocaine in violation of 21 U.S.C. § 841(a)(1) and two counts of possession with intent to distribute marijuana in violation of 21 U.S.C. § 841(a)(1).

On May 22, 1997, search warrants were executed at several locations in and around Flint, Michigan, allegedly associated with defendant Thornton and co-defendant Tederick Lemair Jones. These locations included 4220 Boulder Drive, 4115 Dort Highway, 1901 W. Home Street, 3717 Race Street, 2109 Chateau, 5209 Drummond Square and 3510 Trumbull Avenue. From under the seat in a van parked in front of the residence located at 1901 W. Home Street, police seized a red plastic bag containing a nine-millimeter hand gun. See Testimony of Lt. Koger, Detention Hearing held on June 13, 1997, p. 9. At that location, police also found black clothing allegedly belonging to defendant. See Testimony of Lt. Koger, Evidentiary Hearing held on July 28, 1998. Police also seized, from various locations, narcotics, some rounds of ammunition, another firearm, drug paraphernelia, phone bills, and other assorted business papers belonging to defendant Thornton. See Testimony of Lt. Koger, Detention Hearing held on June 13, 1997, p. 5-6.

On the same day, May 22, 1997, Thornton was arrested pursuant to the above-mentioned indictment and transported to the Flint Police Station Headquarters. While in custody, defendant Thornton allegedly made inculpatory statements in the presence of Lieutenant (now Captain) Jerome Koger and Officer Cedric Kendall. To be analytically precise, there were three separate statements allegedly made to law enforcement officers on May 22, 1997. First, defendant allegedly stated to Lt. Koger, at the Flint Police Station Headquarters, "I might as well tell you what happened because you have the clothes I wore and the gun I used to do the shooting." Second, in the parking lot of the United States Courthouse, defendant purportedly remarked to Officer Kendall, "Man, they are going to kill me if I tell it. You don't know those guys, they will kill me." According to Kendall's testimony at the evidentiary hearing, Kendall then asked defendant if he wanted to talk to Lt. Koger, whereupon defendant answered, "Yeah." Third, in the interview room at the United States Courthouse, after defendant had spoken with Attorney Isaac, Lt. Koger re-entered the interview room and defendant allegedly initiated a conversation by asking, "So, what would you like to talk about first?" According to Lt. Koger's testimony, defendant then proceeded to make inculpatory statements.

The Court will now provide a capsule summary of the testimony elicited from Lt. Jerome Koger, Officer Cedric Kendall and Attorney Roger Isaac at the evidentiary hearing in the above-entitled matter held on July 23, 24 and August 18, 1998.

LT. JEROME KOGER'S TESTIMONY

Lieutenant (now Captain) Jerome Koger testified at the evidentiary hearing that he went to the Flint Police Station Headquarters after assisting in the execution of search warrants, including one at Thornton's residence, 4220 Boulder Drive. Koger further testified that he found Thornton in the Captain's office. He read Thornton his Miranda rights. When Koger asked Thornton if he wished to waive his right to an attorney, Thornton told Koger that he wanted to speak to Koger concerning the case, but that he first wished to speak with Attorney Isaac. Koger immediately called Isaac and asked him to come to the United States Courthouse to meet with Thornton. Isaac, although initially reluctant, eventually agreed to come to the United States Courthouse to meet with Thornton.

According to Koger's testimony, the defendant then abruptly stated to Koger, before being transported from Flint Police Headquarters to the courthouse, and without any inquiry or prompting by Koger, that "I might as well tell you what happened because you have the clothes I wore and the gun I used to do the shooting." Koger was "amazed" that Thornton had said this. Koger testified that he did not know at that time that these items had been seized by other police officers.

Koger testified that he later went to the United States Courthouse, after Thornton had been transported to that location. Upon his arrival, Koger learned that Thornton was meeting with Mr. Isaac. Koger knocked on the door to the interview room in which Issac and Thornton were meeting. When Koger entered the room, Thornton immediately started to speak to Koger, but Isaac instructed him to cease speaking.

Thereafter, Koger and Isaac talked outside of Thornton's presence. Isaac allegedly told Koger that Thornton could not afford to hire Isaac and that it was up to Thornton to decide what to do, i.e., whether or not to speak with Lt. Koger. Issac also told Koger that a federal defender should be appointed. Isaac, at no time, gave Koger "permission" to speak with Thornton.

Koger further testified that after speaking with Isaac, he went back into the interview room. Thornton then allegedly initiated a conversation with Koger, in the absence of any inquiry or comment whatsoever from the police lieutenant, specifically asking, "So, what would you like to talk about first?" Koger then responded that he would like to talk about the homicides first. Thornton then allegedly gave a statement. According to Koger's testimony, Thornton's statement included the following assertions: that he had been paid $10,000 by Jewell Lamont Allen and Tederick Jones for the murder of David Strickland; that the reason for the murder was that Strickland had been indicted and Jewell Lamont Allen was afraid he would talk; that the weapon he used was a nine-millimeter and that Tederick Jones ("Teddy") conducted surveillance during the murders; that the clothing he wore was a black "ninja-outfit;" that he was involved in drug trafficking; and that he had purchased drugs from Allen.

OFFICER CEDRIC KENDALL'S TESTIMONY

Officer Cedric A. Kendall testified that on May 22, 1997, he and another officer transported Thornton from Flint Police Station Headquarters to the United States Courthouse. In the parking lot of the courthouse, while Thornton was in custody and being taken to the United States Marshals' Lockup Facility, Thornton allegedly said to Kendall, "Man, they are going to kill me if I tell it! You don't know those guys, they will kill me!" Kendall then asked Thornton if he wanted to talk to Koger. According to Kendall's testimony, Thornton then responded, "Yeah."

TESTIMONY OF ATTORNEY ROGER G. ISAAC

Roger G. Isaac is an attorney who had represented defendant Thornton in four "fairly serious" drug cases in state court. Isaac testified that on May 22, 1997, he received a telephone call from Lt. Koger. Koger told Isaac that Thornton had requested to speak with him and Koger asked Isaac if he would do so. Isaac initially said that his schedule did not permit him to meet with Thornton, but Isaac later agreed to meet with Thornton. Koger indicated that he wanted a statement from Thornton before "word got out on the street" that Thornton was in custody, and that Thornton had requested the opportunity to speak with Isaac prior to giving any statement.

Isaac came to the United States Courthouse with an appearance in hand to be utilized in the event that Thornton requested Isaac to represent him and Isaac elected to do so. Upon arriving at the...