U.S. v. Turpin

• Decision Date: 01 June 1983
• Docket Number: No. 81-2437,81-2437
• Citation: 707 F.2d 332
• Parties: 13 Fed. R. Evid. Serv. 142 UNITED STATES of America, Appellee, v. James W. TURPIN, Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 332

707 F.2d 332

13 Fed. R. Evid. Serv. 142

UNITED STATES of America, Appellee, v. James W. TURPIN, Appellant.

No. 81-2437.

United States Court of Appeals,

Eighth Circuit.

Submitted May 21, 1982.

Decided May 6, 1983.

Rehearing and Rehearing En Banc Denied June 1, 1983.

Murry A. Marks, J.D., Clayton, Mo., for appellant.

Thomas E. Dittmeier, U.S. Atty., Timothy J. Wilson, Asst. U.S. Atty., St. Louis, Mo., for appellee.

Before ROSS and McMILLIAN, Circuit Judges, and ALSOP, ^* District Judge.

McMILLIAN, Circuit Judge.

This case is before us for the second time. The facts of the case are set out in our earlier opinion. See United States v. Turpin, 698 F.2d 351 (8th Cir.1983). Appellant was convicted by a jury of attempting to make the track and other railroad property hazardous to work and use, with the intent to derail, disable, and wreck a train, in violation of 18 U.S.C. Sec. 1992. The district court sentenced appellant to five years imprisonment. According to the government's theory of the case, appellant killed his friend Steven Blake during a violent argument, placed the body in Blake's car, and then parked the car across the tracks at a railroad crossing, knowing that the car would be hit and demolished by an approaching train, in order to conceal the cause of death.

We remanded the case to the district court for further findings on the question whether appellant was in custody at the time he made the second statement to law enforcement officers on June 28, 1981. We retained jurisdiction of the appeal. The district court ¹ referred the case to a magistrate ² for a hearing and report and recommendation. 28 U.S.C. Sec. 636(b). The magistrate found that appellant was not in custody on June 28, 1981; the district court accepted the report and recommendation of the magistrate. United States v. Turpin, No. 81-140-CR(2) (E.D.Mo. Apr. 5, 1983).

We now address the merits of the appeal. For reversal appellant argues that the district court erred in (1) failing to suppress certain physical evidence and statements, (2) admitting other crimes evidence, (3) refusing a requested jury instruction, and (4) denying his motion for judgment of acquittal. Appellant also argues that the cumulative impact of various trial errors denied him a fair trial. For the reasons discussed below, we affirm the judgment of the district court.

Suppression of Evidence

Appellant first argues that the district court erred in failing to suppress the physical evidence found in his house. Appellant argues that the officers obtained his consent to enter and to search the house by deceit because they did not tell him that Blake had been killed and that he was a homicide suspect. We disagree. "The test in reviewing a consent search is whether, in the totality of circumstances, the consent is given voluntarily and without coercion." United States v. Dennis, 625 F.2d 782, 793 (8th Cir.1980) (citations omitted); see also Schneckloth v. Bustamonte, 412 U.S. 218, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973). "[Because] the issue of consent is usually a factual one, a district court's finding of [voluntariness] must be accepted on appeal unless it is clearly erroneous." United States v. Allison, 619 F.2d 1254, 1262 (8th Cir.1980). The district court here found that appellant voluntarily agreed to the officers' entry and that their observation of blood stains inside the house was in plain view. See Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971). We cannot say that the district court's finding of consent is clearly erroneous.

Misrepresentations about the nature of an investigation may be evidence of coercion. See, e.g., United States v. Meier, 607 F.2d 215, 217 (8th Cir.1979) (per curiam) (tax investigation), cert. denied, 445 U.S. 966, 100 S.Ct. 1658, 64 L.Ed.2d 243 (1980). In addition, misrepresentations can invalidate the consent to search if the consent was given in reliance upon the misrepresentation. See Bumper v. North Carolina, 391 U.S. 543, 548-50, 88 S.Ct. 1788, 1791-92, 20 L.Ed.2d 797 (1968). Here, the officers' failure to tell appellant that Blake had been killed was not a misrepresentation. The officers accurately told appellant that Blake had been in a train accident and that they were investigating the accident. Appellant did not ask any questions at that time and agreed to let the officers inside.

Appellant also argues that the officers' failure to tell him that he was a homicide suspect invalidated his initial consent and his later consent to search. Appellant in particular argues that Sheriff Whitmer, in talking to appellant's attorney, erroneously denied that appellant was "in trouble" or that appellant was a murder suspect. The district court noted that the officers in fact considered appellant a suspect in the killing but did not tell either appellant or his attorney of their suspicions. The district court specifically noted that the sheriff told the attorney that appellant was not a suspect. The district court characterized the sheriff's denial that appellant was a suspect as misleading, but concluded that other evidence strongly supported the finding that appellant's consent to search was voluntary. We cannot say that this finding is clearly erroneous. Although at the time of the search appellant had not been officially charged with Blake's murder, the officers did in fact consider appellant a suspect. We agree that the sheriff's denial of appellant's status as a suspect was somewhat misleading. However, as noted by the district court, the sheriff did supply the attorney with other information which clearly implied that appellant might become a suspect in the future. The officers misrepresented neither the fact that they were investigating a homicide nor that they wanted to search the house as part of their investigation. In particular, the officers did not misrepresent the fact that they had no search or arrest warrant.

Appellant also argues that the district court erred in refusing to suppress the statements he made before and after the search. Before the search appellant told the officers that Blake had returned to the house Saturday afternoon, left with another man later that afternoon, returned again about 11:00 p.m., but immediately drove off again in the white Camaro. Appellant also told the officers that he was at home all Saturday night and left the house only briefly to go to his parents' house. After the search, in response to police questioning, appellant denied killing Blake and attributed the blood stains to a cut on the knee Blake suffered during a fight between Blake and appellant earlier that week. The government characterized these statements as false exculpatory statements. Appellant argues on appeal that the statements were the product of custodial interrogation, conducted without counsel, in violation of the fifth amendment, citing Edwards v. Arizona, 451 U.S. 477, 101 S.Ct. 1880, 68 L.Ed.2d 378 (1981), Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), and Fields v. Wyrick, 682 F.2d 154 (8th Cir.), rev'd, --- U.S. ----, 103 S.Ct. 394, 74 L.Ed.2d 214 (1982) (per curiam).

Appellant was not in custody at the time he made the first or second statement. Because Miranda, and by logical extension Edwards, applies only when there is a custodial interrogation, see Edwards v. Arizona, 451 U.S. at 486, 101 S.Ct. at 1885, neither statement was obtained in violation of the fifth amendment. See, e.g., United States v. Jones, 630 F.2d 613, 615 (8th Cir.1980) (per curiam).

Other Crimes Evidence

Appellant next argues that the district court erred in admitting evidence suggesting that he was involved in the death of Blake. Appellant argues that the homicide evidence was based on speculation and that its probative value was clearly outweighed by its prejudicial impact. ³ The government argues that the homicide evidence and the train wreck evidence are all part of a single criminal transaction and that the homicide evidence was relevant to prove identity and motive.

In previous decisions we have set out the prerequisites that must be met for the admission of evidence of prior criminal or wrongful acts. These requirements track the pertinent portions of the Federal Rules of Evidence, Rule 404(b) and 403. A trial judge acts within his sound discretion in admitting evidence of prior wrongful acts when (1) the evidence is relevant to an issue in question other than that of the character of the defendant, (2) there is clear and convincing evidence that defendant committed the prior acts, and (3) the potential unfair prejudice of the evidence does not substantially outweigh its probative value. Broad discretion is afforded the trial judge in deciding whether to admit wrongful act evidence and his decision will not be overturned without a clear showing that the requirements have not been met.

United States v. Evans, 697 F.2d 240, 248 (8th Cir.1983) (footnote and citations omitted); see, e.g., United States v. Young, 618 F.2d 1281, 1289 (8th Cir.), cert. denied, 449 U.S. 844, 101 S.Ct. 126, 66 L.Ed.2d 52 (1980).

We find no abuse of discretion in the admission of the homicide evidence. The homicide evidence was an integral part of the immediate context of the crimes charged, see United States v. Derring, 592 F.2d 1003, 1007 (8th Cir.1979), and relevant to prove motive and identity because it tended to show why appellant parked the car across the railroad tracks. Although motive is not an element of the offense charged, motive may be evidence of identity. See United States v. Peltier, 585 F.2d 314, 321 (8th Cir.1978), cert. denied, 440 U.S. 945, 99 S.Ct. 1422, 59 L.Ed.2d 634 (1979); accord United States v. Benton, 637 F.2d 1052, 1056-57 (5th Cir.1981). See generally 2 D. Louisell & C. Mueller, Federal Evidence Sec. 140 (1978).

We also conclude that the district court did not abuse its discretion in determining that the prejudicial impact of the homicide evidence did not...