U.S. v. Wolak

• Decision Date: 18 January 1991
• Docket Number: No. 89-2275,89-2275
• Citation: 923 F.2d 1193
• Parties: 31 Fed. R. Evid. Serv. 1274 UNITED STATES of America, Plaintiff-Appellee, v. Walter M. WOLAK, Jr., Defendant-Appellant.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 1193

923 F.2d 1193

31 Fed. R. Evid. Serv. 1274

UNITED STATES of America, Plaintiff-Appellee, v. Walter M. WOLAK, Jr., Defendant-Appellant.

No. 89-2275.

United States Court of Appeals, Sixth Circuit.

Argued Nov. 8, 1990.

Decided Jan. 18, 1991.

Kathleen Moro Nesi (argued), Asst. U.S. Atty., Juanita Temple, Office of U.S. Atty., Detroit, Mich., for plaintiff-appellee.

James Sterling Lawrence (argued), Detroit, Mich., for defendant-appellant.

Before GUY and BOGGS, Circuit Judges, and GRAHAM, District Judge. ^*

RALPH B. GUY, Jr., Circuit Judge.

Defendant, Walter Wolak, was convicted after a jury trial of being a felon in possession of a firearm. 18 U.S.C. Sec. 922(g)(1). His sentence was enhanced as a result of his being subject to the Armed Career Criminal Act, 18 U.S.C. Sec. 924(e)(1), ¹ and a sentence of 20 years was imposed. Wolak appeals both his conviction and his sentence, raising numerous claims of error. Upon a review of the record, we find no error or combination of errors requiring reversal of defendant's conviction but find it necessary to remand for resentencing.

I.

The incident giving rise to this prosecution occurred on May 5, 1989, at 11:35 p.m. in a party store located in Hamtramck, Michigan. Wolak, who is white, had words with a black customer, John Pruitt, when Pruitt allegedly cut in line in front of Wolak. Pruitt allegedly threatened to knock down Wolak, and Wolak drew a pistol from under his shirt and pointed it at Pruitt's head. A struggle ensued involving Wolak, Pruitt, another customer named Steven LaPyrne, and a store employee, Fouad Safi. The pistol ended up in the possession of Safi, who also called the local police. After the police arrived, they talked to Wolak, Pruitt, and the other witnesses. Wolak admitted to the police that he drew the pistol, and he was arrested for assault. After learning of Wolak's extensive criminal record, the case was ultimately turned over to federal authorities, and this prosecution ensued. At trial, Wolak based his defense on the claim that it was Pruitt who had the gun and that Wolak wrestled it away from him.

II.

Although Wolak raises ten separate alleged trial errors, we will discuss together those that are related. We first address various alleged errors in evidentiary rulings.

A. Exclusion of Pruitt's Criminal Record

Pruitt had a 12-year old conviction (1977) for third degree criminal sexual conduct, a felony. He received a sentence of two years probation. Pursuant to the provisions of Federal Rule of Evidence 609(b), the government moved in advance of trial that this conviction be excluded. ² The district judge granted the motion. We review district court rulings on evidentiary matters under an abuse of discretion standard. United States v. Mahar, 801 F.2d 1477, 1495 (6th Cir.1986). Since Pruitt's conviction was over 10 years old, we are unable to find any abuse of discretion on the part of the trial judge. Although credibility was an issue in this case, the testimony of Pruitt was supported by other witnesses and buttressed by Wolak's admission that Wolak drew the gun.

B. Exclusion of Evidence Allegedly Showing Bias on the Part of Pruitt

Wolak sought to introduce testimony through a long-time friend, Peter Hamlin, that Hamlin had seen Pruitt and another government witness, LaPyrne, talking together in the hall, and that LaPyrne allegedly said he "was going to hang the defendant." Upon investigation by the court, it turned out that LaPyrne was not involved, but perhaps a person who had been in court with LaPyrne was involved. Pruitt had already testified when this alleged conversation took place. The trial court found the whole episode to be fraught with speculation and conjecture and of no probative value. We agree. The defendant wholly failed to lay any foundation that would have compelled the admission of this type of testimony.

C. Exclusion of Excited Utterance Testimony

Prior to the party store incident, Wolak had been across the street in a bar playing pool. Wolak wanted to offer the statement of one of the persons, Richard Carter, who had been in the bar with him. He did not call Carter to testify. Allegedly, Carter went across to the party store and came back into the bar and said, "They arrested Whitey (Wolak) and that he didn't have a gun, the other guy did." Wolak claims this statement qualified as an excited utterance. ³ We find no abuse of discretion in excluding this statement. There was no claim that Carter was not available to testify and no foundation was laid either to explain his absence or his source of knowledge. To begin with, as we see it, the statement was not an excited utterance. Although Carter may have been concerned about Wolak's arrest, his learning after-the-fact of the arrest of a long-time felon is hardly calculated to produce the spontaneous outburst that the rule envisions. Additionally, the key part of the "utterance" involves conclusions on Carter's part, since there was nothing to indicate that Carter was present when the incident took place or how Carter even became aware of the arrest. In short, the statement did not "contain sufficient indicia of reliability to ensure accuracy in the fact-finding process." Haggins v. Warden, Fort Pillow State Farm, 715 F.2d 1050, 1055 (6th Cir.1983), cert. denied, 464 U.S. 1071, 104 S.Ct. 980, 79 L.Ed.2d 217 (1984).

D. The Admission of Defendant's Statement Made Prior to Miranda Warnings

When the two police officers responded to the "disturbance" call at the party store, they split up and one talked to Pruitt and the other, officer Schamanski, talked to Wolak. The officers had no details on what was going on, if anything, before they arrived, and they did not know what to expect. In trying to determine what happened, officer Schamanski asked Wolak what had happened and Wolak told the officer he was afraid Pruitt was going to assault him so he pulled a gun. Wolak argues that these statements were the product of a custodial interrogation and, since they were not preceded by Miranda ⁴ warnings, should have been suppressed. We disagree.

It is probably true, as Wolak suggests, that at the time he made the statement to Schamanski, he was not free to leave because the officers were not letting anyone leave until they found out what was going on. We do not see this as the type of "custody" envisioned by Miranda. Wolak's premise, carried to its logical conclusion, would require officers to announce Miranda warnings to everyone present immediately upon arriving at a possible crime scene before they knew what happened or before they could ask any questions. Wolak was not the specific focus of an investigation nor was there anything different from any other police-citizen investigative encounter.

Any interview of one suspected of a crime by a police officer will have coercive aspects to it, simply by virtue of the fact that the police officer is part of a law enforcement system which may ultimately cause the suspect to be charged with a crime. But police officers are not required to administer Miranda warnings to everyone whom they question....

Oregon v. Mathiason, 429 U.S. 492, 495, 97 S.Ct. 711, 714, 50 L.Ed.2d 714 (1977). Here, Wolak was not even a suspect at the time he told the officer what occurred.

Defendant also argues that this statement should have been suppressed as a discovery sanction since it was not revealed to him until a few days prior to trial that the government intended to use this statement. We find no merit to this contention. The assistant United States attorney who tried this case became aware of the statement on the Thursday before the Monday trial was due to start. She notified defense counsel immediately. The statement was not in the police report which had been prepared by Schamanski's partner. Schamanski was a relatively inexperienced police officer and did not appreciate the significance of this piece of evidence until discussing the case with a fellow officer, at which time he immediately contacted the prosecutor.

The district court held a hearing on this issue and concluded there was no intentional wrongdoing. The court also required the government to have the officer who prepared the report available for a defense interview. The trial judge also offered defense counsel an opportunity to further interview Schamanski and a choice as to when Schamanski would testify. Defendant was afforded an opportunity to extensively cross-examine Schamanski and thereby to inform the jury of the underlying circumstances relative to his testimony. Before the testimony of detective Budnik (the officer who prepared the police report), the court gave defendant as much time as he needed to prepare. The action taken by the district court was consistent with our holdings in United States v. Glover, 846 F.2d 339 (6th Cir.), cert. denied, 488 U.S. 982, 109 S.Ct. 533, 102 L.Ed.2d 565 (1988), and United States v. Bartle, 835 F.2d 646 (6th Cir.1987), cert. denied, 485 U.S. 969, 108 S.Ct. 1245, 99 L.Ed.2d 443 (1988), two cases dealing with a similar issue. In both Glover and Bartle, we made it clear that we looked to whether there was intentional misconduct, and also looked to what opportunities were given to the defendant to deal adequately with evidence produced late in the game.

III.

Defendant argues that several acts of prosecutorial misconduct occurred. We examine such a claim against the backdrop of the decisions which have held that, to warrant a new trial, the alleged misconduct must be significant enough to have denied defendant a fair trial. Greer v. Miller, 483 U.S. 756, 107 S.Ct. 3102, 97 L.Ed.2d 618 (1987). Further, the misconduct must be "so pronounced and persistent that it permeates the entire atmosphere of the trial." United States v. Thomas, 728 F.2d 313, 320 (6th Cir.1984) (quoting United States v. Lichenstein, 610 F.2d 1272, 1281 (5th Cir.), cert. denied sub nom. Bella v. United States, 447 U.S. 907, 100 S.Ct. 2991, 64 L.Ed.2d 856 (1980...