U.S. v. Webb

• Decision Date: 05 January 1981
• Docket Number: No. 79-5390,79-5390
• Citation: 633 F.2d 1140
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Robert WEBB, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 1140

633 F.2d 1140

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

No. 79-5390.

United States Court of Appeals, Fifth Circuit.

Jan. 5, 1981.

Bruce H. Morris, Ronald L. Hilley, Atlanta, Ga., for defendant-appellant.

C. Michael Abbott, Asst. U. S. Atty., Atlanta, Ga., for plaintiff-appellee.

Appeal from the United States District Court for the Northern District of Georgia.

Before TUTTLE, VANCE and POLITZ, Circuit Judges.

VANCE, Circuit Judge:

Defendant was convicted in district court of kidnapping and using a firearm to commit a felony. ¹ On appeal he contends the district court erred in admitting evidence seized at the time of his arrest, his confession and the confession of his accomplice.

At about midnight of September 2, 1978, defendant and an accomplice, Jess White, picked up the victim, her husband, and her three-year old child, who were hitchhiking on Interstate 285 near Atlanta. After the passengers had fallen asleep, defendant and White stopped the van and forced the victim's husband and child to get out at gunpoint. The two men then drove the van to defendant's barn where the victim was sexually assaulted. Eventually the victim was taken to Tennessee in defendant's car and let out on a country road. On February 19, 1979, White turned himself in to FBI authorities and gave a complete confession that inculpated the defendant.

An arrest warrant was obtained for Webb and at noon on February 21 three FBI agents and other local law enforcement officials went to his residence. Defendant was told that he was under arrest. He was advised of his rights and he acknowledged that he understood them. The FBI agent then asked defendant if he wanted to be told why he was being arrested. Defendant responded: "Yes, I want you to tell me what I'm charged with and then I'm going to call my lawyer." In response, the agent informed defendant that White had confessed to the kidnapping and had implicated Webb. There was no phone on the premises, so defendant had no opportunity to call his lawyer. He never again mentioned speaking to an attorney and was not questioned further. The agent told defendant that White had told the FBI that a revolver used in the kidnapping would be in the glove compartment of defendant's car and that a license plate would be in the barn. The agent indicated that he would like defendant's permission to search for the gun and the license plate. Defendant was advised of his right to refuse consent to the search and was also told that if he refused the agent could apply for a search warrant, but that it would not automatically be granted. Defendant agreed to the search and executed two consent forms stating that he voluntarily permitted the searches. He then affirmatively assisted the agents in finding the revolver and the tag. They did not handcuff Webb until they began to drive to the FBI office.

During the ride, the agent took some personal information from Webb but did not inquire about the crime. Then they rode in silence for a few moments. Webb sniffled as though on the verge of tears and spontaneously exclaimed, "I've ruined my whole life." He then said, "Jess (White) had an attack of conscience, huh?" Webb told the agent that if he had heard the story from White he might not have received a correct version. The agent told him that he could talk about it if he wanted, but that he could say as much or as little as he wished. He gave Miranda ² warnings again and Webb signed the warning form. Webb then gave a full, detailed confession.

At the hearing on defendant's motion to suppress the gun, the license plate and his confession, the magistrate considered testimony indicating that at the time he executed the consent to the search, defendant had just awakened and was surrounded by a number of armed officers. He had a moderate alcohol dependency, but there was no evidence that defendant was under the influence of alcohol or drugs at the time. The magistrate found that the defendant had knowingly and voluntarily consented to the search. The magistrate concluded also that Webb's confession in the car was not the product of interrogation and was voluntarily given. The district court adopted the magistrate's report as the opinion and order of the court.

I.

Webb challenges the admission of his confession on the ground that he had invoked his right to counsel at his house. Interrogation must cease when an individual unequivocally asks for an attorney. Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966); Nash v. Estelle, 597 F.2d 513 (5th Cir.) (en banc), cert. denied, 444 U.S. 981, 100 S.Ct. 485, 62 L.Ed.2d 409 (1979).

A defendant's demand for counsel does not bar voluntary statements if he "spontaneously incriminates himself after questioning has ceased." Nash v. Estelle, 597 F.2d at 517. When presented with Webb's statement that he wished to hear the charges against him before speaking with his lawyer, the FBI agent acted appropriately. All questioning ceased immediately. His statement that White had confessed to the kidnapping came in answer to Webb's question concerning the charges against him. Webb's confession occurred in a conversation which he initiated and followed a knowing and intelligent waiver of his rights. See United States v. Cavallino, 498 F.2d 1200, 1202 (5th Cir. 1974); United States v. Anthony, 474 F.2d 770, 773 (5th Cir. 1973).

While we are concerned that a suspect's request for counsel should result in an immediate end to all forms of interrogation, we believe that the information provided by the FBI agent was responsive to Webb's question and not an attempt to prolong interrogation. The magistrate correctly found that there had been no violation of Webb's Miranda rights.

II.

Webb challenges the search of the automobile and the barn, and the admission of the revolver and the license plate on the ground that his consent was involuntary. We first note that the totality of the circumstances clearly supports the finding that Webb's consent was voluntary. Schneckloth v. Bustamonte, 412 U.S. 218, 226, 93 S.Ct. 2041, 2047, 36 L.Ed.2d 854 (1973). Webb affirmatively helped the officers find the pistol and license tag. He was not intoxicated, was not handcuffed, and was not threatened with the shotgun. See United States v. Savage, 459 F.2d 60 (5th Cir. 1972) (consent not involuntary merely because of presence of armed officers).

Webb argues that a per se rule, similar to that applicable when fifth amendment rights are involved, should invalidate a suspect's consent to search when he has previously expressed a clear desire to consult with counsel. We need not decide this issue, however, because we believe that the admission of the gun and license plate into evidence was in any case "harmless beyond a reasonable doubt." Chapman v. California, 386 U.S. 18, 24, 87 S.Ct. 824, 828, 17 L.Ed.2d 705 (1967). Included in the considerable evidence presented to the jury in this case was testimony as to Webb's detailed confession, a positive in-court identification of the defendant by the victim's husband and identification by the victim of defendant's car and of his barn as the scene of the sexual assault. The evidence of the gun and the license plate established no vital link but merely added to the overwhelming evidence before the court.

III.

Webb alleges that the limited admission of his accomplice White's confession was prejudicial and violated his right to confront adverse witnesses. In reading White's confession, the prosecutor substituted "his accomplice" for "Webb" and eliminated all references to specific places.

We find no prejudice. Webb attempted to cast doubt upon the accuracy of his confession by attempting to show that he had inserted himself into White's crime because of a tendency to fabricate stories and because of his idolization of White. The only realistic way for the prosecution to rebut such evidence was to show that Webb's confession did not simply repeat and personalize White's account.

We also find no violation of confrontation rights under Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968). In Harrington v. California, 395 U.S. 250, 89 S.Ct. 1726, 23 L.Ed.2d 284 (1969), the Supreme Court held that in the face of overwhelming independent evidence of guilt, a violation of Bruton was harmless beyond a reasonable doubt. Id. at 254, 89 S.Ct. at 1728. Similarly, this court has held that when the guilt of an accused is established beyond a reasonable doubt by his own confession, a violation of Bruton constitutes harmless error. Mack v. Maggio, 538 F.2d 1129, 1130 (5th Cir. 1976). See Parker v. Randolph, 442 U.S. 62, 75, 99 S.Ct. 2132, 2140, 60 L.Ed.2d 713 (1979) (plurality opinion) (admission of interlocking confessions with proper limiting instructions conforms to the requirements of the sixth and fourteenth amendments). In view of the overwhelming evidence of Webb's guilt, any error was harmless.

AFFIRMED.

TUTTLE, Circuit Judge, dissenting:

With deference, I dissent. In Nash v. Estelle, 597 F.2d 513 (5th Cir. 1979), this Court sat en banc, and, with the precision that necessarily follows when the majority opinion is met by a carefully reasoned dissent, spelled out limits to which peace officers might go in interviewing an arrested suspect after he has requested a lawyer. The legal discussion in that case commenced:

United States v. Priest, 409 F.2d 491, 493 (5th Cir. 1969), held:

Where there is a request for an attorney prior to any questioning, as in this case, a finding of knowing and intelligent waiver of the right to an attorney is impossible.... (T)he suspect has an absolute right to delay interrogation by requesting counsel. If such a request is disregarded and the questioning proceeds, any statement taken thereafter cannot be a result of waiver but must be presumed a product of compulsion, subtle or otherwise.

We construe Priest to bar inquiry as to waiver when,...