United States v. Walling, 72-2834.

• Decision Date: 17 September 1973
• Docket Number: No. 72-2834.,72-2834.
• Citation: 486 F.2d 229
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. James Edward WALLING, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

486 F.2d 229 (1973)

UNITED STATES of America, Plaintiff-Appellee, v. James Edward WALLING, Defendant-Appellant.

No. 72-2834.

United States Court of Appeals, Ninth Circuit.

September 17, 1973.

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Charles R. Khoury, Jr., Cal. (argued), Michael McCabe, La Jolla, for defendant-appellant.

Donald F. Shanahan, Asst. U. S. Atty. (argued), Harry D. Steward, U. S. Atty., Stephen G. Nelson, Asst. U. S. Atty., San Diego, Cal., for plaintiff-appellee.

Before DUNIWAY and TRASK, Circuit Judges, and LUCAS,^* District Judge.

LUCAS, District Judge:

Walling was indicted along with Patricia Schell and Michael Smith for violation of the Dyer Act, 18 U.S.C. § 2312. Walling and Smith pled guilty to the Dyer Act offense, Schell pled guilty to a less serious offense. Subsequently, Walling was granted the right to withdraw his guilty plea, and to change counsel. The Government reindicted him, including an additional count of conspiracy. In deference to counsel's request for additional time to prepare for the new count, the district court was willing to continue the entire case, but Walling refused to waive his right to a speedy trial. Over Walling's objection to consolidation, the trial as to both counts proceeded. Walling was convicted on both counts and sentenced to three years on each count to be served concurrently.

The following is a summary of the facts constituting the case. On or about February 6, 1972, Walling approached the proprietor of a gasoline station in Pampa, Texas, and inquired as to the ownership and availability of a gold and white, late-model Cadillac. The following day, the proprietor discovered that the car was missing, and that some money had been taken from a secret hiding place in a storage room. Apparently only the proprietor, his station attendant, and Walling had known of the money's location. (Walling had been seen around the station on other previous occasions.) Walling had been staying at his uncle's residence in Pampa. The last time he was seen by his uncle was late on the night of February 6, 1972. Schell testified that, on the sixth, Walling had asked her if she wanted to go to California, and had asked Smith if he was ready to go pick up the car. Later, the three loaded the gold and white Cadillac with their personal effects, including a tool box taken from Walling's car, and his car's Virginia license plates. On February 8, 1972, they arrived in El Cajon, California. The following evening, at approximately 11 p. m., the three drove to Wildcat Canyon Road, Walling driving his grandmother's white Cadillac, and Smith driving the gold and white Cadillac.

The two men removed some tires from the gold and white Cadillac's trunk, and siphoned gas from its tank which was then poured over its interior. At about this time, San Diego County Deputy Sheriff Swink was driving up the canyon in his personal vehicle, and noticed the Cadillac stopped in the middle of the road with its front end pointing toward the edge of the cliff. He noted that its trunk was open, and that some figures were visible. Driving past the first Cadillac, he came upon the white Cadillac with Schell sitting inside. He stopped, and inquired if anything was happening, to which Schell replied, "Not much. We're just out here driving." Continuing on, Swink flagged down a sheriff's patrol unit, and related his observations of the two stopped vehicles. The two deputies in the patrol car then proceeded up the canyon, and passed the white Cadillac traveling in the opposite direction. They turned around, and signalled the white Cadillac to pull over to the shoulder of the road.

Deputy Sheriff Fisher, the officer conducting the stop of the white Cadillac, testified to the following at the pretrial motion to suppress and at the trial. (Swink was present at the pretrial hearing, and also testified at trial.) At his initial glance into the car, Fisher noticed a large mounted tire placed on the floorboard of the right rear seat, a tool box on the rear seat, and several tools on the floorboard of the driver's seat. Walling was at the wheel of the white Cadillac. He said that he did not have a driver's license when Fisher asked him for identification. Fisher then unsuccessfully sought some form of identification from all three of the occupants. He inquired as to their destination, to which Walling replied that they were returning from his relatives, but he was unable to remember their address. Finally, when questioned over the vehicle's ownership, Walling became visibly nervous and shaken. He stated that it belonged to his father or grandfather, but he was uncertain in this respect. Fisher then asked for proof of the title, and Walling retrieved the registration slip, glanced at it, and then gave it to Fisher. With the exception of the surname, the names of the relatives Walling gave did not correspond to the name on the registration slip. When inquired as to the location of the address of his relatives, Walling first stated it as being in San Diego, and then he corrected himself referring to it as being in El Cajon. The address given by Walling did not correspond to the one on the registration card.

Fisher then ordered the three to sit in the patrol car while the officers inspected the car's trunk. Fisher found the usual spare tire placed in the wheel well, but also found two unmounted tires, a metal suitcase, another tool box, a green garden hose (which smelled of gasoline), and two Virginia license plates. Fisher then went over to the three occupants, and informed them of their Miranda rights. At about this time, Fisher received a radio communication that a vehicle approximately three to four miles away had gone over a cliff embankment, and was on fire. (The burning vehicle was subsequently identified as the gold and white, late-model Cadillac taken from the Pampa, Texas service station. An arson expert from the sheriff's office concluded that the vehicle had been intentionally set on fire with gasoline.)

Deputies Swink and Fisher had been previously aware of a high incidence of criminal activity in the area where the three had been arrested, specifically, cattle poaching, car stripping, and thefts from neighboring residences. It was a lonely, dark and wooded area, infrequently traveled at the hours in question.

At trial, Walling made an offer of proof that Pat Johnson, a fellow inmate of Smith's at the county jail, could testify that Smith had told him that Walling did not know that the Cadillac was stolen until the three arrived in California; that Smith had told Walling he wanted to abandon the Cadillac and that the latter had agreed with the idea that they would notify the police with an anonymous phone call; and that he had also told Walling that the car was stolen for the first time after they arrived in California. The district court refused to allow Johnson to testify when he was available. Walling's testimony at trial was impeached by the introduction into evidence of two prior convictions in Virginia—grand theft of a tape recorder in May 1970, and attempted auto theft in November 1971.

Walling presented four questions for review by this Court:

(1) whether the stopping of the white Cadillac by Deputy Fisher, based in large measure upon the observations of Deputy Swink, was a lawful temporary detention, and, irrespective of the validity of the stop, whether the subsequent search of the vehicle was proper under the circumstances;

(2) whether the district court erred in not granting Walling a continuance, only ten days prior to trial on the substantive count under the Dyer Act, upon the return of the second indictment with the new conspiracy count;

(3) whether the district court erred in admitting the impeachment evidence pertaining to the two prior State convictions; and

(4) whether the district court erred in precluding an opportunity to present the witness on Walling\'s behalf by refusing to continue the case so that the witness could be called, once it had reversed its earlier decision to disallow his testimony.

With respect to the temporary detention issue, Walling contends at the outset that the district court erred in allowing Fisher, at a pretrial suppression hearing, to testify to the information Swink had communicated to him, instead of requiring Swink to testify directly as to his own observations. This preliminary point is without merit. The purpose of offering Swink's extrajudicial statements through Fisher was not to prove the truth of that which Swink had observed, but to demonstrate those circumstances which served as a foundation for Fisher's own observations and actions immediately prior to and during the detention of the Cadillac. Thus, Fisher was not communicating to the jury the substance of that which was reported to him by Swink. Rather he was merely furnishing the basis in fact for those circumstances (which facts were derived from a highly reliable source, Swink) which resulted in an investigative lead. These relayed facts prompted him and his companion to cruise up Wildcat Canyon Road, and, ultimately, compelled him to pull over the Cadillac for a limited investigatory inquiry into the presence of its occupants at that time and place, and their relationship, if any, to the earlier unusual chain of events observed by Swink. Accordingly, there was no error in allowing him to so testify in this fashion. See Davis v. United States, 411 F.2d 1126, 1127-1128 (5th Cir., 1969); United States v. Campbell, 466 F.2d 529, 531 (9th Cir., 1972); cert. denied 409 U.S. 1062, 93 S. Ct. 571, 34 L.Ed.2d 516 (1972); see also Busby v. United States, 296 F.2d 328, 332 (9th Cir., 1961).

Walling contends that this Court is bound by the decision in Remers v. Superior Court of Alameda County, 2 Cal.3d 659, 87 Cal.Rptr. 202, 470 P.2d 11, (1970) (en banc) which held that where an arrest by one officer is based upon information furnished by another officer, the State must...