United States v. Slaughter

• Citation: 366 F.2d 833
• Decision Date: 15 September 1966
• Docket Number: No. 9800.,9800.
• Parties: UNITED STATES of America, Appellee. v. George Edward SLAUGHTER, Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (4th Circuit)

366 F.2d 833 (1966)

UNITED STATES of America, Appellee. v. George Edward SLAUGHTER, Appellant.

No. 9800.

United States Court of Appeals Fourth Circuit.

Argued January 5, 1966.

Decided September 15, 1966.

Rudolph G. Singleton, Jr., and James R. Nance, Fayetteville, N. C. (Court-assigned counsel) Nance, Barrington, Collier & Singleton, Fayetteville, N. C., on brief for appellant.

Theodore George Gilinsky, Atty., Department of Justice (Fred M. Vinson, Jr., Acting Asst. Atty. Gen., and Robert S. Erdahl, Oliver Dibble and Abraham Dash, Attys., Department of Justice, and Robert H. Cowen, U. S. Atty., on brief), for appellee.

Ronald P. Sokol, Charlottesville, Va. amicus curiae.

Before HAYNSWORTH, Chief Judge, and SOBELOFF, BOREMAN, BRYAN, and J. SPENCER BELL, Circuit Judges.

PER CURIAM:

The following opinion was written by Harrison L. Winter, District Judge, who was sitting by assignment with the court when the case was first heard. After rehearing the case en banc this opinion was adopted as the opinion of the full court. It was also noted upon examination of the record that no mention was made in the charge of the possibility of a verdict of a lesser included offense. We assume that if the case is retried this omission will be corrected. Judge Winter's opinion follows:

Appellant, a discharged serviceman, was indicted for first degree murder of one Cortney Reed on the United States military reservation of Fort Bragg, North Carolina, alleged to have been perpetrated on or about May 5, 1962. Upon a jury's verdict of guilty without capital punishment, appellant was sentenced to life imprisonment. He challenges the legality of his conviction on four grounds. Essentially on constitutional grounds, he contends that certain conflicting and contradictory statements made by him in response to interrogation by certain agents of the Federal Bureau of Investigation, after he was arrested ostensibly on a charge of violation of the Dyer Act and after he had appeared before a United States Commissioner and requested the opportunity to employ counsel, but before counsel had been obtained by him, should not have been admitted at his trial. Secondly, he contends that two items of circumstantial evidence to establish the fact that a fight occurred in a parking lot on the army reservation on the night that the deceased was probably killed, and the fact that there was dried blood on a car in the parking lot the following morning, should not, under the law of evidence, have been admitted at the trial. A third contention is that a letter written by appellant to his wife, in which he expressed an intention to purchase an automobile owned by the deceased, was improperly excluded by the district judge and, lastly, appellant contends that there was insufficient evidence from which the jury could have found him guilty of the crime of which he was charged.

Early in 1962 appellant and the deceased were both members of the United States Army, Headquarters Battery, 16th Artillery Battalion, Fort Bragg, North Carolina, a part of the 82nd Airborne Division. The deceased owned a 1957 Ford hardtop automobile, and it was the deceased's custom to park this vehicle on a parking lot about two hundred feet from the barracks in which he and the appellant lived. The vehicle was in need of repairs, and the deceased arranged to have it repaired at a craft shop on the reservation.

Delivery of the repaired car was made to the deceased on Saturday, May 5, 1962. There was evidence tending to show that he occupied his bunk in a locked sleeping room to which he had one of the three keys extant that night, left the room in which he slept between 9:30 and 10:00 o'clock A.M. the following morning and was seen in the orderly room, elsewhere on the post, at approximately the same time. On Monday, May 7, 1962, the first muster after May 5, 1962, the deceased was listed as A.W.O.L. On May 17, 1962, his badly decomposed body was found in a two foot grave in a sandy parachute drop area called "Sicily Drop Zone," which was about 10.4 miles from the barracks area, and which was a zone familiar both to the deceased and appellant. The body could be identified from "dog tags" found in the pocket of trousers on the body and from four fingerprints of the right hand. No paper money was found on the body, and a search of the area turned up an old pair of trousers and a black handled hunting knife identified as similar to one seen in appellant's possession on May 5, 1962. The knife bore traces of human blood, but the blood type could not be determined. The trousers contained particles of macadam or blacktop in the abraded area. It was ascertained that death had occurred approximately seven to ten days before, as a result of a stab or penetrating wound through the chest and heart by a knife or knife-like instrument. In the body was discovered partially digested food of the type served at the mess hall for the 16th Artillery Battalion at the noonday meal on May 5, 1962. There was expert testimony that this food was consumed two to six hours, and not more than twelve hours, prior to death.

Appellant was discharged from military service on May 4, 1962, and received separation pay of $98.74. He did not leave the base immediately, but remained around the barracks area until the evening of May 5 in order to settle certain minor financial obligations and attempt collection of such obligations as were due him. It was shown that at about noon on May 5, 1962, while appellant was packing his bags, several different soldiers observed that he possessed a black handled hunting knife, which had a beer or can opener on or near the handle. At about 2:00 P.M. that day appellant and an acquaintance consumed some beer in the non-commissioned officers club where, again, the hunting knife was seen. From there they drove to Fayetteville, North Carolina, where they consumed more beer, and returned to Fort Bragg about 6:30 P.M. Appellant departed from his friend and stated to him and to another soldier about a half hour later that he would be leaving for home that night; that he and a married couple would be driving to New York City.

At about 10:00 P.M. on the night of May 5, appellant borrowed an entrenching tool from another soldier, stating that he was going to Southern Pines to help a lady move, and that he would return it later. The tool was lent him and he left the barracks with it. About midnight he returned the tool, which was subsequently found to have sand on it.

About 4:00 or 4:30 P.M. on Sunday, May 6, appellant met his wife in New York City. There was testimony that he had first arrived there as early as noon. Appellant was in possession of the deceased's 1957 Ford automobile. It was stipulated that New York is six hundred miles from Fort Bragg, and requires fourteen hours of driving time.

We now come to the facts which give rise to appellant's first contention.

On May 24, 1962, appellant was stopped by a New York police officer for a traffic violation while driving the 1957 Ford hardtop automobile. Appellant said that he had borrowed the automobile from the deceased, and he exhibited a bill of sale vesting title in the deceased and an insurance policy. His only driving license was one from Tennessee, which had expired during his tenure in the service, and he received a summons for driving with an expired operator's permit and was released. Two days later appellant attempted to sell the vehicle to a used car dealer in Brooklyn, New York. When asked for the title he drove the dealer to his apartment, several blocks from the used car lot, went into his apartment and came out exhibiting a title, on the back of which was a certificate of sale or transfer, purportedly signed by the deceased. The dealer noticed that the certificate of sale or transfer was not notarized, and the purported signature of the deceased did not compare with the signature on the other papers. The dealer suggested communicating with the deceased, but the appellant said that he did not know the deceased's whereabouts because he had been discharged from the service. The appellant advanced as a reason for the sale the fact that license plates and insurance were too expensive.

Obviously, the used car dealer, or another to whom appellant also tried to sell the car, became suspicious and communicated his suspicions to the Federal Bureau of Investigation, because the following day, at 10:55 P.M., appellant was arrested by two New York City detectives outside of his apartment house in New York City on the basis of a charge that he had transported a stolen automobile in interstate commerce with knowledge that the vehicle was stolen. At the time of his arrest, and while standing outside of the apartment building, appellant was advised that he did not have to furnish any information, that any information he did furnish could be used against him in a court of law, and that he had a right to consult with an attorney prior to furnishing information. Appellant made no request for counsel, nor did he disclaim a desire to make a statement or furnish any information.

Appellant was taken to the 80th Precinct Station and questioned for about an hour by one of the detectives and an F.B.I. agent about the interstate transportation charge, his employment and former employment. Appellant stated that he had agreed to buy the deceased's car for $300.00 in early April, 1962, and that he gave deceased $75.00 at the time of the agreement, $50.00 in mid-April, and the balance on May 4 or 5, near a parking lot at Fort Bragg. Although appellant claimed that the deceased gave him receipts for the money, the appellant could not produce them. Appellant stated that he had not seen the deceased since he made the last payment, that he left Fort Bragg on Saturday, May 6, and arrived in New York on Sunday afternoon, May 7, and went to the apartment where he met his wife.

At approximately 4:10 or 4:15 A.M. two other F.B.I. agents arrived at...