United States v. Martin, 28890.

Citation434 F.2d 275
Decision Date13 November 1970
Docket NumberNo. 28890.,28890.
PartiesUNITED STATES of America, Plaintiff-Appellee, v. Harry Joseph MARTIN, Defendant-Appellant.
CourtUnited States Courts of Appeals. United States Court of Appeals (5th Circuit)

John S. Tucker, Jr., Birmingham, Ala. (Court-appointed), for defendant-appellant.

Wayman G. Sherrer, U. S. Atty., Melton L. Alexander, Asst. U. S. Atty., Birmingham, Ala., for plaintiff-appellee.

Before RIVES, WISDOM and GODBOLD, Circuit Judges.

RIVES, Circuit Judge:

Martin appeals from his conviction for violating 18 U.S.C. § 23121 and sentence to three years' imprisonment.

About 8:30 A.M., April 4, 1969, an Alabama State Trooper patrolling a highway near Bessemer, Alabama, noticed a 1964 Chevrolet parked on a small dirt road off the pavement. He continued patrolling, but came back about 9:00 A.M., went to the car, noticed a man sleeping in the back, got the tag number, called his headquarters by radio and was informed that the tag was registered to a 1956 Ford. The trooper then awoke Martin by tapping on the window of the car. Martin stepped out of the automobile leaving the door open. The trooper testified that before he wrote down the serial number of the car or had any conversation with Martin, he advised him of his constitutional rights.2 Martin responded that he understood but would talk without the presence of a lawyer. The trooper told Martin that the license tag was registered to another car, and Martin admitted that he had stolen the car in Chicago. The trooper testified that he then placed Martin under arrest, that Martin said "I don't want to discuss it any further," and that was the end of the interview.

The trooper carried Martin to the Highway Patrol Building on the Bessemer Highway, briefed a Lieutenant of the State Department of Public Safety on what had transpired to that point and left Martin in his custody. The Lieutenant testified that Martin was brought in at about 10:10 A.M., that before any conversation he advised him of his constitutional rights.3 Upon questioning, Martin then related to the Lieutenant his name and address, and that he had told the trooper that he took the car in Chicago.

At the time of his arrest, Martin was bleary-eyed and smelled of alcohol. He testified that he was in a dazed condition from having been on a drinking spree, but the officers who talked to him testified that he appeared coherent and responded to their questions intelligently.

The owner of a vehicle stolen in Chicago early on the morning prior to Martin's arrest testified at the trial. His description of the car matched that provided by the FBI agent who investigated the theft. The vehicle identification number which the agent found on the vehicle in which Martin was sleeping was the same number provided by the owner from the title to his vehicle.

The owner testified that his wife had been watching the late show on television, and waked him around one o'clock in the morning and said "somebody is stealing your car." The owner's wife did not testify at the trial. Martin sought to introduce in evidence what purported to be a Chicago police department stolen vehicle report. The report contained a description of the thief provided by the wife which was at considerable variance with Martin's appearance. The district court declined to admit the report in evidence.

On appeal, Martin urges that the district court erred in admitting the incriminatory statements made to the officers and in excluding the police report. He also urges that the court erred in its charge to the jury when the judge stated that he believed that the parties had agreed that the vehicle was stolen.

I.

Martin contends that the court committed error by admitting into evidence admissions made by him to the arresting officer and an hour later to another officer.

The warnings given Martin by the officers4 meet the Miranda test.5 It must, however, be determined whether Martin was intoxicated to the extent that he could not intelligently understand the warnings and could not intelligently and knowingly waive his right not to talk.

"It has been pointed out that `courts indulge every reasonable presumption against waiver\' of fundamental constitutional rights and that we `do not presume acquiescence in the loss of fundamental rights.\' A waiver is ordinarily an intentional relinquishment or abandonment of a known right or privilege. The determination of whether there has been an intelligent waiver of the right to counsel must depend, in each case, upon the particular facts and circumstances surrounding that case * * *."

Johnson v. Zerbst, 1937, 304 U.S. 458, 464, 58 S.Ct. 1019, 1023, 82 L.Ed. 1461.

The arresting officer testified that "There was an odor of alcoholic beverage" on Martin's breath Tr. 51, that "he was under the influence" Tr. 52, and indicated that a person driving a car in Martin's condition could be arrested for drunken driving Tr. 53. He also testified that Martin talked "reasonably intelligent" Tr. 51, that he had no difficulty understanding what Martin said Tr. 70, and that Martin "seemed to know what he was doing" Tr. 71.

The second admission came when Martin confirmed to the Lieutenant that he had told the arresting officer of the theft. This conversation took place a little over an hour after the arrest. The Lieutenant's testimony was that Martin appeared "droopy-eyed" Tr. 83, that his eyes were "red streaked" Tr. 92 and that he could smell alcoholic beverages on him Tr. 83. But the Lieutenant also testified that Martin was not incoherent in his talk Tr. 83, that he responded to questions intelligently Tr. 90, and that he did not appear to be intoxicated Tr. 84.

Martin testified that he had been drinking heavily for several days. The night before his arrest he had drunk at a tavern until closing time at midnight, and continued drinking past 1:00 A.M. of the day of his arrest. He was arrested something less than 8 hours after he last recalled drinking. He testified that when the trooper waked him he was dazed and did not know what was going on Tr. 140-145.

2 Wharton's Criminal Evidence (12th ed.), p. 122, § 388 contains the following discussion of intoxication as affecting a confession:

"A confession otherwise voluntary is not to be excluded because the accused was intoxicated when he made it. The fact that the confesser was intoxicated is a circumstance affecting its credibility, and is to be considered by the jury.
* * * * * *
"If the intoxication of the confesser produced actual mania, or rendered the confesser unconscious of what he was saying, his confession is inadmissible. However, the fact that the accused had but recently recovered from delirium tremens will not render a confession inadmissible." (Footnotes omitted.)

The 1970 Cumulative Supplement to this section cites later holdings to the following effect:

"The fact that the defendant was intoxicated when he confessed is immaterial if he had sufficient mental capacity at the time to know what he was saying and to have voluntarily intended it. Citing State v. Smith (Mo.), 342 S.W.2d 940; People v. Schompert, 19 N.Y.2d 300, 279 N.Y.S. 2d 515, 226 N.E.2d 305, cert. den. 389 U.S. 874, 88 S.Ct. 164, 19 L.Ed.2d 157."
"The extent to which the defendant is intoxicated or has a hangover does not make his confession inadmissible but goes only to its weight. Citing People v. Clouse, 222 Cal.App.2d 562, 35 Cal.Rptr. 272."

A recent case which held that the accused was too intoxicated to waive his rights is Logner v. North Carolina, M.D. N.C. 1966, 260 F.Supp. 970. In that case the evidence showed that the accused had a history of drinking and drug use. He was observed walking unsteadily by two police officers. When he got into his car they followed him and he had an accident several blocks away. He was so drunk that he was unable to put his car in reverse and could not make a statement about the accident. After he was arrested and advised of his rights, the accused stated, "I can tell you anything. You still have to prove it." He went on to implicate himself in two robberies. The district court said:

"A confession made by one in the petitioner\'s state of intoxication could not be the product of a rational intellect and a free will. Indeed, it is a paradox that the petitioner could not make a statement concerning the accident because he was too drunk, yet he was capable of making statements that put him in prison."

260 F.Supp. 970, 976.

In Bell v. United States, 1931, 60 App. D.C. 76, 77, 47 F.2d 438, 439, the appellant had been convicted of murder after the trial court had admitted into evidence a confession made while intoxicated.

"It was testified by the police officers that when he made the confession to them he was `partially under the influence of intoxicating liquor,\' that is, `you could detect the odor of liquor on his breath\' and `his speech was sort of thick,\' but that while `he showed indications of having been drinking * * * he had his mental faculties and knew what he was about\'; and that he `was not drunk, but showed plainly he had been drinking.\' One of the police officers was asked, `In your opinion, if he had been operating an automobile would he have been under the influence of liquor to such an extent that you would have arrested him?\' to which he answered, `If my attention was brought directly to the man it may be possible he would be arrested for operating an automobile while drunk.\'"

The court held that "The evidence fails to disclose such an extreme case of intoxication as to render the confession inadmissible."

The evidence in the instant case indicates that, while Martin had been drinking and was affected by alcohol to some degree, his faculties were not so impaired that he did not understand what was going on nor was he incoherent. We conclude that the district court did not err in finding that Martin had intelligently and knowingly waived his right not to talk to the officers and in admitting in evidence the admissions which...

To continue reading

Request your trial
27 cases
  • U.S. v. Smith
    • United States
    • U.S. Court of Appeals — District of Columbia Circuit
    • 23 Octubre 1975
    ...(1967); United States v. Burruss, 4 Cir., 418 F.2d 677 (1969); United States v. Halperin, 5 Cir., 441 F.2d 612 (1971); United States v. Martin, 5 Cir., 434 F.2d 275 (1970); United States v. Wolosyn, 9 Cir., 411 F.2d 550 (1969); United States v. Graham, 6 Cir., 391 F.2d 439, cert. denied, 39......
  • U.S. v. Evans
    • United States
    • U.S. Court of Appeals — Fifth Circuit
    • 4 Mayo 1978
    ...v. Scallion, supra 533 F.2d at 914-15. The witness must only be in a position to attest to its authenticity. See United States v. Martin, 434 F.2d 275, 279 (5th Cir. 1970). Each of these sponsoring witnesses testified in some detail regarding the record-keeping processes of CRCAP. All five ......
  • Coulter v. State
    • United States
    • Texas Court of Criminal Appeals
    • 16 Mayo 1973
    ...Warren v. United States, 447 F.2d 259 (9th Cir. 1971); United States v. Haili, 443 F.2d 1295 (9th Cir. 1971) and United States v. Martin, 434 F.2d 275 (5th Cir. 1970). However, in some circumstances, evidence within the ambit of a recognized exception to the Hearsay Rule is not admissible i......
  • United States v. Hyde
    • United States
    • U.S. Court of Appeals — Fifth Circuit
    • 23 Junio 1971
    ...the jury three choices of verdict, guilty, not guilty or not guilty by reason of insanity. The recent decision in United States v. Martin, 5th Cir. 1970, 434 F.2d 275, is not in conflict with the above "The principles stated in the case of Mims v. United States, supra, require that the plai......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT