Wakaksan v. United States

• Decision Date: 31 October 1966
• Docket Number: No. 18208.,18208.
• Citation: 367 F.2d 639
• Court: U.S. Court of Appeals — Eighth Circuit
• Parties: Joseph WAKAKSAN, Jr., Appellant, v. UNITED STATES of America, Appellee.

367 F.2d 639 (1966)

Joseph WAKAKSAN, Jr., Appellant, v. UNITED STATES of America, Appellee.

No. 18208.

United States Court of Appeals Eighth Circuit.

October 31, 1966.

COPYRIGHT MATERIAL OMITTED

Harold A. Dronen, Fargo, N. D., for appellant.

Gary Annear, Asst. U. S. Atty., Fargo, N. D., for appellee. John O. Garass, U. S. Atty., Fargo, N. D., was with him on the brief.

Before VOGEL, Chief Judge, MEHAFFY, Circuit Judge, and McMANUS, District Judge.

McMANUS, District Judge.

This is an appeal in forma pauperis from a jury conviction for voluntary manslaughter under 18 U.S.C.A. § 1112¹ The indictment charged appellant with killing Ida Poorbear, upon a sudden quarrel and in heat of passion, by stabbing her with a knife at Tokio, North Dakota on the Devils Lake Sioux Indian Reservation, where appellant was an enrolled Indian. Appellant was sentenced to nine years imprisonment.

Claimed errors in the trial court are:

I. Prejudicial admission of an involuntary, signed statement, obtained during illegal detention, and without advice of constitutional rights.

II. Prejudicial admission in evidence of a prior criminal conviction.

III. Denial of motions for mistrial based on prejudicial testimony of government psychiatrist and prejudicial closing argument.

We affirm.

Appellant, a 57 year old Indian, and Ida Poorbear lived together as husband and wife. They were also known as Joe and Ida Andrews. On February 2, 1965, after drinking heavily, and while alone in the home of appellant's sister, on the Devils Lake Sioux Indian Reservation, they fought with a knife during a quarrel over appellant's alleged infidelity. Ida was fatally stabbed in the chest, her body being found in the house the next day. Appellant wandered away from the scene and was later hospitalized until March 2, 1965 because of three knife wounds received in the fight.

While in the hospital on February 5, 1965, he made a statement pertaining to Ida's death which was admitted in evidence at the trial without objection. On March 2, 1965, after his release from the hospital, appellant was arrested on an earlier liquor violation of the Tribal Code. Without counsel, he was brought before the tribal judge on March 5, 1965, pleaded guilty and was sentenced to 30 days in jail. During this detention, on March 11, 1965, he voluntarily submitted to a lie detector test in Bismarck, North Dakota concerning the details of Ida's death, thereafter giving a recorded and signed statement to Captain Frank Brave Bull of the Bureau of Indian affairs.² After giving the statement, appellant was immediately brought before a United States Commissioner and charged with the crime which is the subject of these proceedings. Error is claimed in the admission of this March 11th confession.³

I.

In a separate hearing on a motion to suppress the confession, the trial judge found that the confession was voluntary, appellant had been advised of his rights, and he had not been illegally detained.⁴ We will discuss each of these points.

INVOLUNTARINESS

In accordance with the views of the trial court, we find no evidence of threats, promises or coercion to support appellant's claim. Essentially his claim is that due to his feeble health, lack of education and unstable mental condition and due to the events surrounding the interrogation, the statement given was coerced. Appellant alleges there was a successful attempt to overwhelm him by a carefully designed plan which resulted in an involuntary statement.

In determining whether the confession was voluntary, close scrutiny of the facts of each individual case is the necessary approach and the totality of circumstances dictates the decision. Gallegos v. State of Colorado, 370 U.S. 49, 52-55, 82 S.Ct. 1209, 8 L.Ed.2d 325 (1962); Spano v. People of State of New York, 360 U.S. 315, 321-323, 79 S.Ct. 1202, 3 L.Ed.2d 1265 (1959); Mitchell v. Stephens, 353 F.2d 129, 140 (8th Cir. 1965). Both the judge and the jury were presented with the issue of voluntariness and it is apparent that neither found any coercion exercised on appellant. Taking the view of the evidence which most strongly supports the findings in the trial court, as we must, the evidence definitely does not establish conclusively and as a matter of law that the confession was involuntary. Birnbaum v. United States, 356 F.2d 856, 865 (8th Cir. 1966); Mitchell v. Stephens, supra; Thompson v. Cox, 352 F.2d 488 (10th Cir. 1965). The finding as to voluntariness is fully supported by the evidence and will not be disturbed. Thomas v. Commonwealth of Virginia, 357 F.2d 87, 90 (4th Cir. 1966); Redmon v. United States, 355 F.2d 407, 411 (9th Cir. 1966).

CONSTITUTIONAL RIGHTS

Appellant's next contention is that he was not timely warned of his right to remain silent and his right to counsel and that he did not competently and intelligently waive those rights. The Supreme Court in Escobedo v. State of Illinois, 378 U.S. 478, 490-491, 84 S.Ct. 1758, 1765 (1963), set up guidelines for when the accused should be warned of his constitutional rights and allowed an attorney.⁵ The court stated:

"We hold, therefore, that where, as here, the investigation is no longer a general inquiry into an unsolved crime but has begun to focus on a particular suspect, the suspect has been taken into police custody, the police carry out a process of interrogations that lends itself to eliciting incriminating statements, the suspect has requested and been denied an opportunity to consult with his lawyer, and the police have not effectively warned him of his absolute constitutional right to remain silent, the accused has been denied `the Assistance of Counsel\' in violation of the Sixth Amendment to the Constitution as `made obligatory upon the States by the Fourteenth Amendment.\' Gideon v. Wainwright, 372 U.S. 335, at 342 83 S.Ct. 792, at 795, 9 L.Ed.2d 799, and that no statement elicited by the police during the interrogation may be used against him at a criminal trial."

The Supreme Court further noted 378 U.S. at page 492, 84 S.Ct. at page 1766:

"* * * We hold only that when the process shifts from investigatory to accusatory — when line its focus is on the accused and its purpose is to elicit a confession — our adversary system begins to operate, and, under the circumstances here, the accused must be permitted to consult with his lawyer."

The accusatory stage in the instant case had not attached until the time the statement was to be taken on March 11, 1965. In Escobedo, there was no doubt that a murder had been committed, and the investigation had focused on Escobedo. In the instant case no charge had been lodged against the appellant and no one was sure a crime had been committed. Captain Brave Bull stated that he didn't suspect the appellant until he obtained the statement of March 11, 1965. The lie detector test was given to determine whether the appellant had guilty knowledge concerning the stabbing death of Ida Poorbear. Where the officers are merely trying to ascertain the facts to see if a federal crime has been committed, the accusatory stage has not yet begun. Birnbaum v. United States, supra, 356 F.2d at 863; Miller v. United States, 354 F.2d 801, 813 (8th Cir. 1966); United States v. Robinson, 354 F.2d 109, 114-115 (2d Cir. 1965); United States v. Konigsberg, 336 F.2d 844, 853 (3d Cir. 1964).

There was testimony by Mr. Granrud and Captain Brave Bull that before the lie detector test Mr. Granrud advised the appellant that he had a right to remain silent and was entitled to an attorney. Captain Brave Bull also testified that before he took the statement he also advised appellant of his right to counsel, his right to remain silent, and told him that any statement he made might be used against him.⁶ The appellant's testimony conflicted on these points.

We think the instant case is clearly distinguishable from Escobedo where the accused requested and was denied counsel and was not effectively warned of his right to remain silent. Assuming the accusatory stage of interrogation had begun when appellant made the statement of March 11, 1965, there is sufficient evidence to support the trial court's ruling that appellant was fully advised of his constitutional rights and voluntarily confessed. Birnbaum v. United States, supra, 356 F.2d at 864. Apparently the trial court believed the testimony of the officers. Davidson v. United States, 349 F.2d 530, 534, (10th Cir. 1965). There is no absolute rule that a confession made without counsel violates the Sixth Amendment rights. Hays v. United States, 347 F.2d 668, 669-670 (8th Cir. 1965). Where, as here, appellant was warned of his constitutional rights and voluntarily made a statement and signed it, his constitutional rights have not been violated. Whiteside v. United States, 346 F.2d 500, 505-506 (8th Cir. 1965); United States v. Drummond, 354 F.2d 132, 147-148 (2d Cir. 1965); Commonwealth of Pennsylvania v. Maroney, 348 F.2d 22, 31-32 (3d Cir. 1965).

ILLEGAL DETENTION

The statement of March 11, 1965, was taken while appellant was in detention resulting from the liquor conviction of the tribal court. Appellant argues that the conviction and detention were illegal since he was arrested three days before he was brought before the tribal court⁷ and counsel was not provided for him.⁸ Appellant contends that any statement made during this alleged illegal detention would be inadmissible even though it concerned another crime.

Here appellant was being legally detained by tribal authority, and his rights were not violated. Williams v. Lee, 358 U.S. 217, 79 S.Ct. 269, 3 L.Ed. 2d 251 (1958); Talton v. Mayes, 163 U.S. 376, 16 S.Ct. 986, 41 L.Ed. 196 (1895); Native American Church v. Navajo Tribal Council, 272 F.2d 131 (10th Cir. 1959); Barta v. Oglala Sioux Tribe of Pine Ridge Reservation, 259 F.2d 553, 556-557 (8th Cir. 1958); Iron Crow v. Oglala Sioux Tribe of Pine Ridge Reservation, 231 F.2d 89 (8th Cir. 1956); Toledo v. Pueblo De Jemez, 119 F.Supp....