United States v. Frazier, 23528.

• Decision Date: 26 January 1973
• Docket Number: No. 23528.,23528.
• Citation: 476 F.2d 891
• Parties: UNITED STATES of America v. Eugene R. FRAZIER, Appellant.
• Court: U.S. Court of Appeals — District of Columbia Circuit

476 F.2d 891 (1973)

UNITED STATES of America v. Eugene R. FRAZIER, Appellant.

No. 23528.

United States Court of Appeals, District of Columbia Circuit.

January 26, 1973.

Ira S. Siegler, Washington, D. C. (appointed by this court) was on the brief for appellant.

Thomas A. Flannery, U. S. Atty., at the time the brief was filed, John A. Terry, Thomas C. Green and John O'Brien Clarke, Jr., Asst. U. S. Attys., were on the brief for appellee.

Before BAZELON, Chief Judge, and WRIGHT, McGOWAN, TAMM, LEVENTHAL, ROBINSON, MacKINNON, ROBB, and WILKEY, Circuit Judges, sitting en banc.

McGOWAN, Circuit Judge:

The only issue before the court en banc in this appeal from a conviction of armed robbery (22 D.C.Code § 2901) is whether the District Court erred in its conclusion that, on the evidence before it, the Government had sustained its burden of establishing a knowing waiver by appellant of his right to independent legal assistance after his arrest. Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L.Ed.2d 694 (1966).

When the case was first before a panel of this court, a majority thought that a circumstance appearing in the prosecution's evidence at trial raised a doubt about the state of appellant's mind in making the seeming waiver, which warranted a remand for a supplementary inquiry. Frazier v. United States, 136 U.S.App.D.C. 180, 419 F.2d 1161 (1969), Circuit Judge (now Chief Justice) Burger, dissenting. On remand, an evidentiary hearing was held at which the Government presented testimony with respect to appellant's capacity to understand the proper warning concededly given him; and the District Court made findings of fact from which it concluded that such capacity existed. Although none of these findings were rejected by the panel on its second consideration of the case, a majority reversed the conviction in an opinion issued February 24, 1971, from which Judge Nichols of the United States Court of Claims, sitting by designation, dissented. We granted rehearing en banc because the sharp and persisting differences within the panel suggested that the case, although something of a sport on its facts, might have important implications with respect to judicial definition of the responsibilities of law enforcement officers in the administration of the Miranda rule. On the record made on remand, we sustain the District Court and affirm the conviction.

I

At the remand hearing, Officer Sandy of the Metropolitan Police Department testified that he had arrested appellant at 4:15 P.M. on September 7, 1966, under the authority of an arrest warrant issued in respect of the robbery of a business establishment known as Mike's Carry-Out Shop.¹ The arrest was made on the street, and Sandy promptly read to appellant the Miranda warning on a card known as P.D. Form 47. Appellant's response was to say: "You didn't have to read it to me in the first place. I already know my rights." Appellant was then taken to the precinct station where he was searched and booked. Sandy telephoned Detective Keahon of the Robbery Squad at police headquarters—the officer who had procured the issuance of the arrest warrant—to report appellant's arrest. Keahon asked that appellant be brought to his office, and that was done. Sandy testified that throughout this period he had no further conversation with appellant; and that appellant was completely cooperative, in apparent command of himself, and not under the influence of alcohol or narcotics.²

Detective Keahon testified that appellant was delivered to him at 5:20 P.M. His handcuffs were removed and he sat in a chair at Keahon's desk. Only one other police officer—engaged in other duties—was in the large Robbery Squad office, and there was no noise or other disturbance that might be distracting or interfere with hearing. After telling appellant of the warrant under which he had been arrested, Keahon read to appellant the P.D. 47 card, and also a P.D. 54 form which states the Miranda warnings and contains a consent to speak.³ Both forms were given to appellant to read, which he did. He was asked if he understood the warnings, and replied that he did. He was asked specifically if he understood his right to have a lawyer; again the answer was positive, and appellant added that he didn't want a lawyer. It was further Keahon's testimony that:

"I asked him if he knew that anything he said to us could be or would be used against him in court. And he stated that he did. He said, `I know my rights.\'"

Thereafter he signed the P.D. 54 consent form at 5:30 P.M.

Keahon testified that, as these procedures were completed, appellant broke in to say: "I want to clear Teddy. Teddy didn't shoot the woman in that hold-up; I did." This reference was to a robbery of a High's Ice Cream store. Thereafter appellant referred in quick succession to certain other robberies, including Mike's Carry-Out Shop and the Meridian Market. At some point in this colloquy Keahon decided that he should be taking notes of what was being said, and he reached for a pad and pencil. What happened then is described in Keahon's testimony as follows:

A. I started to write. The defendant Frazier said, "No, don\'t put anything down." He said, "Don\'t write anything."

Q. How strenuous an objection was that, in your opinion?

A. Well, it wasn\'t—to me, it didn\'t seem like an objection. He just said, "Don\'t write." So, I didn\'t press it at that time.

Q. Why?

A. Well, he was admitting these hold-ups and I didn\'t want to start arguing with him as long as he was talking about hold-ups. And he was apparently being very truthful, because he was telling me things about the hold-ups that I didn\'t know. I didn\'t want to stop him.

So, as soon as he said, "Don\'t write," I stopped writing and pushed the pad and pencil away.

There is some confusion in the record as to whether this note-taking incident occurred before or after appellant had told of his participation in the robbery of the Meridian Market. The trial court was at some pains to get this matter cleared up, because Keahon appeared to be testifying on remand that it occurred after the Meridian Market admission, whereas his testimony at trial indicated it had been before. Keahon was asked to refresh his recollection during a recess; and his final testimony on this point is as follows:

Q. Lt. Keahon, during the noon recess did you have an opportunity to read from certain portions of the original trial transcript in this regard?

A. Yes, sir.

Q. And has that refreshed your recollection as to the events which took place in the afternoon of September 6, 1966?

A. Yes, sir.

Q. September 7, excuse me.

Going back to those events, sir, will you tell us at what point in your interview with the defendant, Mr. Frazier, did he request that you not write anything down?

A. It was when he started mentioning the High Store hold-up, after he was advised of his rights and after I had read him the arrest warrant about the robbery-hold-up that he was charged with under the warrant of Mike\'s Carry-Out Shop.

Q. Well, after you read to him P.D. Form 47 and after he had executed the Form 54, what was the first topic of conversation?

A. Well, I started talking to him about the Mike\'s Carry-Out Shop hold-up.

Q. At that point had you reached for a pad and pencil?

A. No, not at that time.

Q. Had the defendant said anything to you about refraining from taking notes at that time?

A. No, not at that time.

Q. Tell us, then, just what happened?

A. Well, it was after that. I don\'t know the exact conversation, but I was talking to him about Mike\'s Carry-Out.

He did mention something about that afternoon. And then he started saying, "Well, I don\'t care," something to that effect, and he started into the High\'s Store hold-up, where he said Teddy was involved and Teddy didn\'t shoot the woman; "I shot the woman."

At that time was when I did reach for the pad and started to take notes.

At that time he stated he didn\'t want any notes taken. He said, "Don\'t write anything down," something to that effect.

THE COURT: Was this before he mentioned anything about the Meridian Market?

THE WITNESS: Yes, I believe it was.

Detective Keahon testified that, in all, appellant told of several hold-ups and of one occasion on which he had shot his roommate. The woman who had been shot in the High's Store robbery was brought down to the office, and appellant reenacted the incident in such a way that he convinced her that he was her assailant and not one Teddy Moore who was being held for that robbery. A victim of one of the other robberies recounted by appellant also identified him, aided by appellant's volunteered recital of the events of that robbery.

The interview ended around 7:30 P.M. Keahon testified that appellant had been not only cooperative but coherent, with no signs of emotional disturbance or physical discomfort of any kind. At the end, as indicated by Keahon's testimony set forth in the margin, appellant rejected a suggestion that he write out, or sign a written version, of what he had said.⁴

Keahon was present the next morning when appellant was taken before the United States Commissioner on the Mike's Carry-Out charge. Keahon testified—and the record of that proceeding recites—that, after full advice as to his rights, appellant "stated that he wanted a hearing now—that he wanted to get it over with and that he did not want a lawyer—of own choice or Legal Aid." Commissioner Wertleb testified that his notes of that appearance showed that appellant "stated affirmatively that he did not want any lawyer."

A third police witness presented by the Government was Officer Durkey. He testified that on March 23, 1966, he had arrested appellant on a charge of assault with a gun, and that he had then both read to appellant a P.D. 47 card and given him a copy of it to keep. Aside from saying that he had not been in possession of the gun, appellant made no further response to the giving of these warnings.

The Government's first...