US v. Grimes

• Decision Date: 02 January 1996
• Docket Number: No. 95-49-Cr-J-20.,95-49-Cr-J-20.
• Citation: 911 F. Supp. 1485
• Parties: UNITED STATES of America v. James Arthur GRIMES.
• Court: U.S. District Court — Middle District of Florida

911 F. Supp. 1485

UNITED STATES of America v. James Arthur GRIMES.

No. 95-49-Cr-J-20.

United States District Court, M.D. Florida, Jacksonville Division.

January 2, 1996.

COPYRIGHT MATERIAL OMITTED

Charles R. Wilson, United States Attorney and Stephen M. Kunz, Assistant United States Attorney, Tampa, FL, for the United States.

James H. Burke, Jr., William Mallory Kent, and Mark Rosenblum, Federal Public Defender, Jacksonville, FL, for Defendant.

ORDER

SCHLESINGER, District Judge.

This cause is before the Court on the Motion to Suppress Statements and Evidence Obtained in Derivation Therefrom (Doc. No. 49, filed October 30, 1995) (Motion to Suppress). The United States filed its opposition to the Motion to Suppress on November 9, 1995 (Doc. No. 52). An evidentiary hearing was held by United States Magistrate Judge Snyder on December 8, 1995.

On December 13, 1995, the United States Magistrate Judge submitted a Report and Recommendation (Doc. No. 81). The Magistrate Judge recommended that the Motion to Suppress be denied. Defendant James Arthur Grimes' Objections to Magistrate's Report and Recommendation was filed December 18, 1995 (Doc. No. 86).

Upon consideration of the Report and Recommendation, and the objections made thereto, and upon conducting an independent de novo review of the entire record in this matter, the Court overrules the objections and adopts and confirms the Magistrate Judge's findings.

Accordingly, it is ORDERED AND ADJUDGED:

(1) the Magistrate Judge's Report and Recommendation (Doc. No. 81) is ADOPTED, and it is specifically incorporated into this Order; and

(2) Motion to Suppress Statements and Evidence Obtained in Derivation Therefrom (Doc. No. 49, filed October 30, 1995) is DENIED.

DONE AND ENTERED.

REPORT AND RECOMMENDATION¹

SNYDER, United States Magistrate Judge.

Status

This cause is before the Court on Defendant Grimes' Motion to Suppress Statements and Evidence Obtained in Derivation Therefrom (Doc. # 49; hereinafter Motion to Suppress), filed on October 30, 1995. The Response of United States in Opposition to Defendant Grimes' Motion to Suppress Statements and Evidence Obtained in Derivation Therefrom (Doc. # 52; hereinafter Response) was filed on November 9, 1995. An evidentiary hearing on the Motion to Suppress was held on December 8, 1995.

Evidence and Testimony

On July 21, 1994, James A. Grimes was arrested by an officer of the Jacksonville Sheriff's Office (hereinafter JSO) on an Information and Capias charging he had committed the crime of obtaining property via a worthless check. Defendant Exhibit 1, admitted on December 8, 1995, at unnumbered 1-4. On July 22, 1994, a state judge entered an order appointing a public defender to represent Mr. Grimes and, on the same day, Defendant and his counsel signed a form entitled Defendant's Claim of Rights. Id. at unnumbered 5-6. Defendant was released from custody shortly thereafter.

Before or during October of 1994 Kenneth Pender, a friend of the Defendant, spoke with a neighborhood police officer named Gary Ellis. Mr. Grimes had made incriminating statements to Pender, one of which was that the wrong individual was the victim of a bombing at the Cedar Cove apartment complex. Pender informed Ellis of Grimes' statements² and Officer Ellis related them to Gayward Hendry, an investigator with the Special Prosecution Unit of the State Attorney's Office. Subsequently, Officer Ellis took Pender to a meeting attended by Investigator Hendry and other law enforcement officers.

Investigator Hendry testified he first met Mr. Pender on October 11, 1994. Hendry, who had been investigating the activities of the Defendant, asked Pender to keep in contact with Grimes. Hendry maintained communication with Pender and interviewed him concerning his contacts with the Defendant.

On December 13, 1994, William Judd Stevenson, a deputy sheriff with the JSO, received information there were outstanding warrants for Defendant's arrest on charges relating to worthless checks. Stevenson was also informed Mr. Grimes would be at a particular location that day at a certain time. The deputy sheriff proceeded to the location and encountered Mr. Grimes, who was then accompanied by Mr. Pender. Grimes was arrested and advised of his rights, which he stated he understood. Grimes was advised of the nature of the charge, which he indicated he understood, and was taken to the Duval County Jail. At the jail he was served with the outstanding warrants concerning a violation of probation and various felony and misdemeanor charges. On December 14, 1994, a state court judge found Defendant insolvent and appointed the public defender to represent him. Defendant's Exhibit 1 at unnumbered 10. On the same date Mr. Grimes and his counsel signed a Defendant's Claim of Rights form which read, in pertinent part, as follows:

1. The Defendant, together with the undersigned counsel, the Public Defender for the Fourth Judicial Circuit of Florida, hereby asserts his/her right not to make any statements, oral or written, regarding the facts or circumstances of the offense(s) with which he/she is charged, or regarding the facts or circumstances of any criminal offenses for which he/she is not charged (but is merely a witness or suspect), unless his/her attorney is present during any questioning and/or making of any such statements. The Defendant claims his/her right to counsel and the right to remain silent pursuant to Amendments 5 and 6 of the Constitution of the United States.

2. Defendant further asserts that any future waiver of the right to have counsel present or to remain silent must be in writing (with reference to this notice), and only after notice has been given to his/her attorney of the Defendant's intention to waive this right and an opportunity provided for the Defendant and his/her attorney to discuss the waiver of these rights.

Id. at unnumbered 11.

Shortly after Defendant's December 1994 arrest, Investigator Hendry spoke with Pender again and instructed that if Mr. Grimes attempted to contact Pender by telephone, Pender should speak with him. Hendry also advised Pender not to talk to the Defendant about the pending worthless check charges and not to solicit information regarding any other crime. Pender was, however, told to listen in the event the Defendant wanted to talk. After the December 1994 arrest, Pender did not initiate any telephone calls with Grimes; rather, the Defendant would call him collect.

Investigator Hendry testified that, at some point in time, Pender was instructed to record his telephone conversations with the Defendant, and the first recording occurred on January 6 or 7, 1995. Telephone records of Pender's residence reveal approximately seventy collect calls were received from the Duval County Jail from December 13, 1994, through February 8, 1995; however, there were many calls in which Grimes and Pender did not speak because Pender was not available. Also, there were calls in which Pender spoke with Grimes but could not record due to the presence of family members, who Pender had not informed of his cooperation with authorities.

On January 22 or 23, 1995, Pender was asked to change his focus and attempt to solicit statements from Grimes. Pender was instructed by the police to tell Grimes a friend had some work for the Defendant, which Pender did. In response, Grimes indicated he could work for this person and made some statements concerning arson and bombing. According to Investigator Hendry, there were discussions with the Assistant State Attorney and the JSO jail staff regarding arranging the release of the Defendant.

On February 7, 1995, the Defendant entered into and signed a Plea of Guilty and Negotiated Sentence. Defendant Exhibit 1 at unnumbered 12. In exchange for his plea of guilty and agreement to make restitution, the state of Florida agreed to drop charges in certain cases against Mr. Grimes and that he be sentenced to two years probation with certain conditions. Id. Defendant's guilty plea was accepted by a state court judge the same day and he was adjudged guilty. Id. at unnumbered 13-14; see also Defendant Exhibit 2, admitted on December 8, 1995, at 12. An Order of Probation entered by the state court judge reveals he was sentenced to two years probation, with one of the conditions of probation being that he "enter and successfully complete the program at the Probation Restitution Center." Defendant Exhibit 1. Although not specifically reflected in the Order of Probation, during the hearing the judge pronounced that Defendant "will be released only to the custody of the Salvation Army with transportation to PRC." Defendant Exhibit 2 at 12.

On February 8, 1995, Defendant was released from the custody of the Duval County Jail and picked up by Pender, who was driving a car³ provided to him by the JSO. The time of pick-up was arranged through the JSO jail staff. Pender had been instructed by law enforcement officers to pick up Mr. Grimes and take him to a marina in St. Augustine where Investigator Hendry would be operating undercover. When Defendant was picked up by Mr. Pender he informed he planned to abscond and was not going back. During the trip to St. Augustine Pender told Defendant several times that they could turn around and go elsewhere, such as South Carolina or a camp in the Osceola National Forest, but Grimes insisted he wanted to work for Pender's "friend."

Once at the marina in St. Augustine, Pender and Grimes went to a boat and met Hendry and other undercover law enforcement officers. From this point, it was arranged that Pender, Grimes and Hendry would go to a room Hendry had rented at the Ponce de Leon Hotel. Prior to going to the hotel, however, Pender again told Grimes he could go back to the camp and gave him several options to leave. Defendant replied he would go to the hotel.

After they had arrived at the hotel room and had ordered some pizza, Pender and another undercover officer left the...