United States v. Cox
| Decision Date | 15 November 1973 |
| Docket Number | No. 73-1822 Summary Calendar.,73-1822 Summary Calendar. |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. David Connell COX, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Fifth Circuit |
Arthur I. Ungerman, Dallas, Tex. (Court-appointed), Fred Time, Dallas, Tex., for defendant-appellant.
Frank D. McCown, U.S. Atty., Richard Stevens, Asst. U.S. Atty., Ft. Worth, Tex., for plaintiff-appellee.
Before JOHN R. BROWN, Chief Judge, and DYER and SIMPSON, Circuit Judges.
Cox appeals from his jury conviction of using a telephone to willfully threaten to damage or destroy property by means of an explosive in violation of 18 U.S.C.A. § 844(e). He urges that four errors by the court below require reversal: (1) that Cox's confession given to United States Special Agents was erroneously admitted due to its involuntary nature; (2) that the court erred in refusing to grant a mistrial following prejudicial testimony of a Government witness to the effect that Cox was a convicted felon; (3) that the trial court's failure to specifically instruct the jury to disregard the prejudicial portion of the Government witness' testimony constituted error; and (4) that the court erroneously overruled an objection to the testimony of another Government witness regarding a previous telephone threat made by Cox. Finding each objection unmeritorious, we affirm.
On April 3, 1972, the switchboard operator at the Reserve Life Insurance Company in Dallas, Texas, received a telephone call conveying an ominous message: "A bomb will go off in one hour if you don't get rid of Connie Pate." Fortunately, the threat proved to be a hoax. On the morning of April 6, 1972, two Special Agents went to the Dallas City jail to interview David Cox, the defendant, in connection with an unrelated offense involving a violation of federal firearms regulations. At the outset of this interview, the agents advised Cox of his rights and obtained from him a signed waiver. The ensuing interrogation related exclusively to the alleged firearms violation, and no reference was made to the telephone threat of April 3. At approximately 5:00 P.M. on the same day, the two agents returned to Cox's cell and questioned him concerning the bomb threat. At this time, the officers again advised Cox of his rights and obtained a signed waiver, which was subsequently lost or destroyed. During the course of this interview, Cox confessed that he made the unlawful call.
At the time of the second interview, Cox appeared nervous and restless to the interrogators, which prompted Special Agent Arnold to inquire whether the defendant was perhaps "strung out." Cox apparently indicated to the agents that he had been under medication for asthma and that his arrest had prevented further access to prescribed drugs. However, Cox at no time during the interrogation indicated any desire to terminate the interview, nor did he complain of any discomfort except to inform the agents as they were leaving that he was cold. The agents were persuaded that Cox was coherent and rational since he was fully able to carry on a lengthy conversation after having expressly waived his rights.
During the course of Cox's trial, the two agents testified with respect to the defendant's jail-cell confession over the objection that the statement was rendered involuntary by Cox's drug-influenced condition. Further, during cross-examination, Agent Griffin stated that the first interview with Cox on April 6 was in connection with the offense of "Possession of a Firearms sic By a Convicted Felon." This description erroneously related the exact nature of the pending charge against Cox, since the relevant offense did not pertain simply to possession of firearms by convicted felons.1 Cox's prompt objection to that portion of the testimony concerning the defendant's being a convicted felon was sustained by the court, and the jury was instructed upon counsel's request to disregard the statement. The defendant thereupon moved unsuccessfully for a mistrial on the grounds of the prejudicial nature of the statement.
Later in the trial, the Government called Mrs. Mattie Evelyn Carson, Connie Pate's mother, who testified that the defendant had previously telephoned her and threatened to kill several persons, including Connie. This testimony was allowed over Cox's objection that Mrs. Carson was relating an account as to "extraneous acts" which were highly prejudicial to the defendant.
On appeal, Cox invokes a wholly inapplicable principle of law in attacking the court's finding of voluntariness. He contends that the Government failed to prove with "unmistakable clarity" that the confession was voluntary, as required by Sims v. Georgia, 1967, 385 U.S. 538, 87 S.Ct. 639, 17 L.Ed.2d 593. Sims is singularly inapposite to the case sub judice inasmuch as that decision simply required that the judge's conclusion of voluntariness appear with unmistakable clarity on the record. 385 U.S. at 544, 87 S.Ct. 639.
Sims aside, the relevant standard governing proof of voluntariness was enunciated by the Supreme Court in Lego v. Twomey, 1972, 404 U.S. 477, 92 S.Ct. 619, 30 L.Ed.2d 618, which held that the Government's burden in such cases is to prove voluntariness by a preponderance of the evidence, not beyond a reasonable doubt. 404 U.S. at 489, 92 S.Ct. 619.
Turning to the evidence adduced at trial, three pertinent facts are somewhat supportive of Cox's position. Unlike the results of the first interview with the defendant on April 6, the Government was unable to produce the written waiver of rights which Cox signed at the outset of the afternoon interview. Second, and more importantly, Cox appeared nervous and restless during the interview, causing one agent to inquire of Cox whether he was "strung out." Finally, certain details, e. g., the cost of the telephone call, related by Cox in his confession were not substantiated by the Government, and, indeed, considerable doubt as to their accuracy was raised at trial.
The Government's evidence, on the other hand, showed that Cox was fully informed of his rights and...
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U.S. v. Gardner, 74-1311
...from the record with unmistakable clarity. Sims v. Georgia, 385 U.S. 538, 544, 87 S.Ct. 639, 17 L.Ed.2d 593 (1967); United States v. Cox, 487 F.2d 634, 636 (5th Cir. 1973). It is Gardner's position that it is impossible to tell from "The motion to suppress is overruled," whether the court w......
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United States v. Works, 75-1539.
...that any prejudicial effects of this testimony could be cured by its immediate instruction, see, e. g., United States v. Cox, 487 F.2d 634, 636-37 and n.2 (5th Cir. 1973). The questioned testimony fits snugly under the aegis of the general rule that an error in admitting evidence can, in ma......