U.S. v. Walker, 74-1726

• Decision Date: 10 November 1975
• Docket Number: No. 74-1726,74-1726
• Citation: 524 F.2d 1125
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Willis Edward WALKER, Defendant-Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 1125

524 F.2d 1125

UNITED STATES of America, Plaintiff-Appellee, v. Willis Edward WALKER, Defendant-Appellant.

No. 74-1726.

United States Court of Appeals Tenth Circuit.

Argued July 10, 1975.

Decided Nov. 10, 1975.

L. B. Ullstrom, Denver, Colo., for defendant-appellant.

J. Terry Wiggins, Asst. U. S. Atty. (James L. Treece, U. S. Atty., Denver, Colo., on the brief), for plaintiff-appellee.

Before CLARK, ^* Associate Justice, and HILL and BARRETT, Circuit Judges.

HILL, Circuit Judge.

Appellant was convicted of kidnaping under 18 U.S.C. § 1201 and of interstate transportation of a stolen motor vehicle in violation of the Dyer Act, 18 U.S.C. § 2312. The case was tried to the court. Appellant raises several points on appeal, placing his major emphasis on his unsuccessful defense of insanity. Because each of appellant's points depends largely on the sufficiency of the government's evidence to prove the elements of the crimes charged, we will first detail the facts.

The events leading to this prosecution occurred during a prison escape by appellant and Robert Jeffrey Murren, a codefendant at trial. The two were inmates at the Wyoming State Penitentiary in Rawlins, Wyoming. Appellant was the editor of the prison news magazine and Murren was the assistant editor. Appellant also wrote articles for the local newspaper in Rawlins. When the articles were completed, appellant was permitted to deliver them personally to the editor at the newspaper office.

On March 13, 1974, appellant and prison social worker Kenneth Roy Warner went to the Rawlins newspaper office to submit an article, but decided to return the next day because the editor was not there. During the afternoon of March 14, 1974, Warner again checked appellant out of the institution to go to downtown Rawlins and submit the article. Appellant convinced Warner that Murren should be permitted to go along, and the three traveled downtown in a 1970 Pontiac station wagon owned by the State of Wyoming.

Before they went to the newspaper office, appellant asked Warner to take them to a Gibson's store on the east side of Rawlins so he could buy a birthday card for his mother, but Warner refused. They spent a short time at the newspaper office and then Warner went with them across the street to a store where appellant bought a card. When they got back in the station wagon, appellant put a screwdriver to Warner's side and told him to move over or he was "going to get it." Murren took the wheel, and they headed east towards Laramie, keeping Warner as a hostage.

After they were underway, appellant told Warner they had planned the escape the night before and that Warner was to be the hostage because they thought he would not panic. Appellant said they had planned to take over the automobile at the Gibson's store and had planned to use the Snowy Range Road as an around-about way to Laramie. Appellant also discussed letting Warner go at different locations along the way. Appellant once told Warner he would be tied to a tree with tape from which he could escape, and, in case he did not, appellant would call a priest in Denver and tell him how to find Warner. At Warner's urging, appellant threw the screwdriver out the window.

On the Snowy Range Road a tire on the station wagon went flat. When they stopped to change it, Warner attempted to get away and was able to run about half a mile before appellant caught him and took him back. Appellant subsequently kept a tire iron in hand in case Warner tried anything else. The Snowy Range Road was blocked by snow and appellant decided they should stop and wait until dark before moving on. During the five-hour wait, snow continued to fall. Appellant thought he saw faces and lights in the snow and would get out and investigate every time they heard a noise. They discussed their escape plans and appellant stated his intention to use Warner to get through a roadblock if necessary.

After dark they started driving again, but headed towards Colorado rather than Laramie. The plan at that point was to go to Denver. Subsequently, appellant decided they should go to Steamboat Springs, Colorado, and get drunk. Warner testified that throughout the episode appellant kept changing his plans, talked incessantly, and tried to tell jokes but no one would laugh.

In the early morning hours of March 15, 1974, they arrived in Hideaway Park, Colorado. Under circumstances not relevant here, sheriff's officers there captured appellant and Murren and freed Warner.

Appellant first contends the government failed to prove all the elements of kidnaping under 18 U.S.C. § 1201. He contends there was no asportation or "carrying away" because the movement of the victim was "merely incidental" to the underlying crime of escape. He also contends that holding the victim to aid an escape does not satisfy the statutory requirement that the victim be held for "ransom or reward or otherwise." The authority cited by appellant does not support these contentions and we find no merit in them. Obviously, the crime of escape may be committed without a kidnap. The kidnaping here was not incidental to the escape, but was for the express purpose of aiding the escape. Appellant stated he intended to use the hostage to avoid capture at a roadblock. The cases are squarely against appellant on both points and leave no doubt that kidnap to aid an escape is a violation of18 U.S.C. § 1201. United States v. Stidham, 459 F.2d 297 (10th Cir. 1972); United States v. Sierra, 452 F.2d 291 (10th Cir. 1971); see United States v. Healy, 376 U.S. 75, 84 S.Ct. 553, 11 L.Ed.2d 527 (1964); DeHerrera v. United States, 339 F.2d 587 (10th Cir. 1964).

Appellant next contends the government failed to prove an essential element of the Dyer Act charge. He questions whether the station wagon used in the escape was "stolen" within the meaning of the Act because Warner, the person lawfully in possession, remained in it at all times and was returned to possession after appellant's arrest. However, appellant admits in his brief that this case "appears to fall into the category of 'joyriding' " and that interstate joyriding is a violation of the Dyer Act. Lawrence v. United States, 445 F.2d 652 (5th Cir. 1971), cert. den'd, 404 U.S. 861, 92 S.Ct. 161, 30 L.Ed.2d 104. Appellant also admits there was at least "unauthorized use". The term "stolen" in 18 U.S.C. § 2312 includes all felonious takings with intent to deprive the owner of the rights and benefits of ownership regardless of whether the theft constituted common law larceny. United States v. Turley, 352 U.S. 407, 77 S.Ct. 397, 1 L.Ed.2d 430 (1957); McCarthy v. United States, 403 F.2d 935 (10th Cir. 1968). Under this definition the evidence amply supports a finding that the vehicle was stolen.

Appeal is also taken from the admission into evidence of a confession made by appellant after he was in custody and had been apprised of his rights. Appellant claims his fear of returning to the Wyoming State Penitentiary and his consequent desire to be incarcerated instead in a federal prison renders the confession involuntary. The trial court conducted a hearing to determine the...