U.S. v. Turner

• Decision Date: 17 November 1977
• Docket Number: No. 77-1554,77-1554
• Citation: 565 F.2d 539
• Parties: UNITED STATES of America, Appellee, v. Lonnie TURNER, Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 539

565 F.2d 539

UNITED STATES of America, Appellee, v. Lonnie TURNER, Appellant.

No. 77-1554.

United States Court of Appeals,

Eighth Circuit.

Submitted Nov. 14, 1977.

Decided Nov. 17, 1977.

J. Justin Meehan, Howard, Singer & Meehan, St. Louis, Mo., for appellant.

Barry A. Short (former U. S. Atty.), and James J. Barta, Asst. U. S. Atty., St. Louis, Mo., for appellee.

Before HEANEY, WEBSTER and HENLEY, Circuit Judges.

PER CURIAM.

Lonnie Turner was convicted of possession of a firearm after having been previously convicted of a felony. 18 U.S.C.App. § 1202(a)(1). He was sentenced to two years imprisonment. We affirm.

Turner was arrested after two St. Louis police officers saw him carrying a bundle from which three firearms protruded. One of the officers was previously acquainted with Turner. The officer called to Turner, who then dropped the bundle and ran. He was quickly apprehended by the officers, who placed him under arrest and read him his Miranda rights. Turner refused to make any statements.

After the officers determined that the firearms had been stolen the day before, they contacted the Bureau of Alcohol, Tobacco and Firearms, Department of the Treasury. Two agents of the Bureau came to question Turner. The agents advised Turner of his Miranda rights and asked him to sign a form waiving his constitutional rights. Turner refused to make any statement or sign the waiver of rights form. One of the agents left the room, and the other then asked Turner for information concerning his personal history. At that time, the agent testified that Turner volunteered the statement that he had gotten the guns from a friend to sell for a few dollars. Turner made no further statements with respect to the incident.

On appeal, Turner first contends that the trial court erred in admitting the statement he allegedly made to the agent of the Bureau of Alcohol, Tobacco and Firearms. It has been clearly established that a defendant has a right to cut off questioning when he has indicated he will not make a statement. Miranda v. Arizona, 384 U.S. 436, 473-474, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966); Michigan v. Mosley, 423 U.S. 96, 102-106, 96 S.Ct. 321, 46 L.Ed.2d 313 (1975); United States v. Finch, 557 F.2d 1234, 1236 (8th Cir. 1977). It is equally clear, however, that voluntary statements are admissible. Here, the agent was not questioning Turner as to the crime, but was instead obtaining routine personal identification information. The agent testified that Turner volunteered the statement on his own and not in response to questioning. Similar unresponsive custodial statements have been found to be admissible. See United States v. Thomas, 475 F.2d 115, 116-117 (10th Cir. 1973); Parson v. United States, 387 F.2d 944, 945-946 (10th Cir. 1968); Spinelli v. United States, 382 F.2d 871, 890-892 (8th Cir. 1967), reversed on other grounds, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969). We note, moreover, that there has been no allegation of government coercion or deception in obtaining the statement. Thus, the trial court did not err in admitting the statement.

Turner's next contention is that the reading of the indictment was unduly prejudicial because it specified the nature of his prior felony. An essential element that must be proven to sustain a conviction under 18 U.S.C.App. § 1202(a)(1) is that the defendant must have been a convicted felon at the time he received or was in possession of a firearm. United States v. Mancino, 474 F.2d 1240 (8th Cir.), cert. denied, 412 U.S. 953, 93 S.Ct. 3020, 37 L.Ed.2d 1007 (1973). A stipulation as to the existence of an unspecified prior felony conviction of...