U.S. v. Webb, 85-1617

• Decision Date: 27 June 1986
• Docket Number: No. 85-1617,85-1617
• Citation: 796 F.2d 60
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Keith Bryan WEBB, Defendant-Appellant. Summary Calendar.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 60

796 F.2d 60

UNITED STATES of America, Plaintiff-Appellee, v. Keith Bryan WEBB, Defendant-Appellant.

No. 85-1617

Summary Calendar.

United States Court of Appeals Fifth Circuit.

June 27, 1986.

Keith B. Webb, Leavenworth, Kan., Monty D. Roberson, Court Appointed, Advisory Capacity only, El Paso, Tex., for defendant-appellant.

Helen M. Eversberg, U.S. Atty., Sidney Powell, Asst. U.S. Atty., San Antonio, Tex., for plaintiff-appellee.

Appeal from the United States District Court for the Western District of Texas.

Before GEE, RANDALL and DAVIS, Circuit Judges.

W. EUGENE DAVIS, Circuit Judge:

Keith Webb appeals his conviction of one count of murder in violation of 18 U.S.C. Sec. 1111 and two counts of injury to a child in violation of Texas Penal Code Sec. 22.04(a), made applicable through 18 U.S.C. Sec. 13 (the Assimilative Crimes Act). He was sentenced to life imprisonment and two terms of thirty years imprisonment, respectively, with the thirty year terms to be served concurrently with his life sentence. We affirm the convictions.

I.

The case arose as a result of the death of appellant's six year old son, Steve Wilson, after appellant allegedly slammed his head into a wall and scalded him with hot water. Appellant was originally convicted on one count of second degree murder and two counts of injury to a child; however, the convictions were reversed and a new trial ordered by this court because statements obtained from appellant in violation of Edwards v. Arizona, 451 U.S. 477, 101 S.Ct. 1880, 68 L.Ed.2d 378 (1981), were erroneously admitted in trial. United States v. Webb, 755 F.2d 382 (5th Cir.1985).

These tainted admissions led authorities to the site where appellant had buried his son's body. Nonetheless, we stated that the physical evidence of the body might be admissible under some exception to the judicially created "exclusionary rule" and left the determination of its admissibility to the district court for decision. Thereafter, appellant was indicted on one count of murder and two counts of injury to a child. Prior to trial, the district court 637 F.Supp. 259 ruled at an evidentiary hearing that the body was admissible in the second trial under the "inevitable discovery" exception to the exclusionary rule. See Nix v. Williams, 467 U.S. 431, 104 S.Ct. 2501, 81 L.Ed.2d 377 (1984). Following a second trial in which this evidence was admitted, appellant was convicted on all counts charged.

II.

The underlying facts leading to appellant's convictions are adequately set forth in United States v. Webb, supra, and will not be repeated here. Appellant seeks to overturn these convictions on the following grounds: (1) the victim's body was erroneously admitted into evidence under the inevitable discovery exception; (2) appellant's convictions placed him in double jeopardy; (3) appellant was denied effective assistance of counsel; (4) a fatal variance existed between the indictment and proof adduced at trial; (5) appellant was denied a fair trial by prosecutorial misconduct; and (6) appellant was denied due process required by law.

A.

In order for evidence to be admitted under the inevitable discovery exception, the government must demonstrate (1) a reasonable probability that the evidence would have been discovered by lawful means but for the police misconduct; (2) that the police possessed the leads making the discovery inevitable at the time of the misconduct; and (3) that the police were actively pursuing the alternate line of investigation prior to the misconduct. United States v. Cherry, 759 F.2d 1196, 1204 (5th Cir.1985). We find the district court's conclusion that the government met this burden to be amply supported by the record.

While on the microwave tower, appellant informed the surrounding military personnel that his son's grave could be found approximately one mile inside an area known as the McGregor Range, crossing the railroad tracks and looking to the right of a paved road which was near an access road. The statements made by appellant while on the tower were found admissible by this court on appellant's first appeal. 755 F.2d at 390-92. Thomas Wright, a Fort Bliss Criminal Investigation agent familiar with the surrounding area, testified that from appellant's description and information provided by appellant's wife, a search area approximately one mile wide and six miles long was drawn up.

A search party had begun combing the search area, but before finding the body, they temporarily halted the search and planned to continue the next day with an additional 300 searchers. These searchers would have been able to cover the search area in approximately six hours walking six feet apart. However, these plans were aborted when appellant decided to lead authorities to the body. The gravesite turned out to be a noticeable mound ten to twelve inches high. It was located within the search area and the body was partially exposed and visible above the ground. The record evidence supported the district court's conclusion that evidence of Steve Wilson's body was within the inevitable discovery exception to the exclusionary rule.

B.

Appellant argues that his sentences violate the double jeopardy clause of the fifth amendment "because there is no element of proof required to establish the offense of injury to a child that were (sic) not proved to establish the offense of murder with malice." The test to determine if two statutes prohibit the same offense is a matter of statutory construction; the court must determine whether each statute requires proof of an additional fact that the other does not. Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932). What appellant fails to recognize is that "the Blockburger test is to be applied to the elements of proof required by the statute and not to the actual evidence or proof adduced at trial in a given case." Davis v. Herring, 783 F.2d 511, 514 (5th Cir.1986). See, e.g., United States v. Woodward, 469 U.S. 105, 105 S.Ct. 611, 83 L.Ed.2d 518 (1985).

Although the question presented did not involve double jeopardy, United States v. Fesler, 781 F.2d 384 (5th Cir.1986), is dispositive of the present issue. In Fesler, the defendants were charged with the federal crime of involuntary manslaughter and the Texas crime of injury to a child, which was made applicable through the Assimilative Crimes Act (ACA), supra, because the crime was committed in a federal enclave. The defendants argued they could not be punished under the ACA for the offense of injury to a child because that crime was punishable under the federal crime of manslaughter.

We disagreed stating:

Here, the criminal acts charged are distinct. The Texas penal code states that the victim must be 14 years old or under before all the elements of injury to a child are satisfied. There is no such requirement in the federal offense charged. Moreover, death of a human being, essential to a federal involuntary manslaughter conviction, is not required in the state offense.

Id., at 391. Similarly, the federal crime of murder and the state crime of injury to a child each require proof of an additional fact that the other does not. Because the Blockburger test is satisfied, appellant's conviction and punishment for both crimes in this case does not implicate double jeopardy concerns.

C.

Appellant contends that he was denied effective assistance of counsel because his counsel moved for and was granted a postponement of the trial. As a result of this action, Webb complains that the government took advantage of the additional time to prepare a superseding indictment which added the two counts of injury to a child to the murder charge already pending against appellant. This contention is frivolous. To establish ineffective assistance of counsel, appellant must show that counsel's performance was deficient and that the deficient performance prejudiced the defense. Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674, 693 (1984).

Appellant fails to get beyond his first hurdle. In judging counsel's performance, the "inquiry must be whether counsel's assistance was reasonable considering all...