Walton v. United States

• Decision Date: 16 July 1964
• Docket Number: 7627.,No. 7589,7590,7589
• Citation: 334 F.2d 343
• Parties: Ernest Robert WALTON, Appellant, v. UNITED STATES of America, Appellee. Elizabeth P. COMLEY, Appellant, v. UNITED STATES of America, Appellee. Kenneth Eddie CHOW, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Tenth Circuit

334 F.2d 343 (1964)

Ernest Robert WALTON, Appellant, v. UNITED STATES of America, Appellee.

Elizabeth P. COMLEY, Appellant, v. UNITED STATES of America, Appellee.

Kenneth Eddie CHOW, Appellant, v. UNITED STATES of America, Appellee.

Nos. 7589, 7590, 7627.

United States Court of Appeals Tenth Circuit.

July 16, 1964.

John J. Mullins, Jr., Denver, Colo., for appellant Ernest Robert Walton.

L. Richard Freese, Jr., Denver, Colo., for appellant Elizabeth P. Comley.

Edward C. Eppich, Denver, Colo., for appellant Kenneth Eddie Chow.

Benjamin E. Franklin, Asst. U. S. Atty., Topeka, Kan. (Newell A. George, U. S. Atty., Topeka, Kan., with him on the brief), for appellee.

Before MURRAH, Chief Judge, and PICKETT and LEWIS, Circuit Judges.

PICKETT, Circuit Judge.

The appellants were charged jointly with bank robbery and conspiracy in a 2-count indictment returned in the United States District Court for the District of Kansas. They were convicted on both counts and these appeals are from the judgment and sentence imposed following conviction. Three days after the robbery Walton was questioned by Kansas law enforcement officers and agents of the F. B. I. He admitted that he participated in the robbery, and his confession implicated Comley and Chow. These consolidated appeals present two important questions: (1) whether Walton's confession was inadmissible in evidence because he was not taken before a committing magistrate without unnecessary delay after his arrest, as required by Rule 5(a), F.R.Cr.P., and (2) whether the court erred in not granting motions of Comley and Chow for separate trials in view of Walton's confession.

On Friday, January 4, 1963, the Rosedale State Bank at Kansas City, Kansas

was robbed by three persons.¹ Little progress had been made by law enforcement officers in solving the crime until Monday, January 7, on which date Walton, who was employed in Kansas City, Missouri, was driven to Kansas City, Kansas by a friend, Tommy Nunn. After arrival in Kansas City, Kansas, Walton requested Nunn to stop near a hospital. Walton left the automobile and returned shortly thereafter with a plastic bag containing a quantity of money. Walton took some of the money from the bag and then placed the bag, containing the remaining money, underneath the car seat. Walton and Nunn later appeared at the county courthouse where Walton reported to the Parole and Probation Officer of Wyandotte County, Kansas. The probation officer advised Walton that the Kansas City police desired to talk to him and that he could either go down there himself or the probation officer would call the police, "and let them come up to my office." Walton and Nunn arrived at the police station about 1:00 P.M. where they were questioned rather briefly as to their whereabouts the past few days and the police inquired as to where Walton's 1958 Ford automobile was located. The police had no reason to suspect that either Walton or Nunn had participated in the bank robbery, but were looking for leads.

The record does not disclose the extent of the questioning of Walton and Nunn at this time, but there was intermittant questioning of both. Sometime before 2 P.M., Nunn advised the officers that he and Walton had driven to Kansas City, Kansas in his (Nunn's) car. He stated that the automobile was parked near the county courthouse and agreed to take the officers there and gave his consent that it be searched. The plastic bag containing approximately $5,000 was found in the car. The witnesses agreed that the trip to Nunn's car and return to police headquarters took approximately one hour.² Upon their return shortly before 3 P.M., Walton was sitting alone in a room at headquarters. F. B. I. Agent Thomas showed him the money which had been taken from Nunn's car, and Walton responded that it was his share from the Rosedale bank robbery. Up to this time the officers had no cause to arrest Walton, and the evidence is undisputed that he was not under arrest and was free to leave headquarters if he desired. Upon making the admission about the money found in Nunn's car, Walton, after being fully advised as to his right to counsel and that any statement made by him could be used against him, continued immediately to make a clean breast of the entire affair by narrating to F. B. I. Agent Hansen the planning of the robbery by the three participants, the actual robbery, and the division of the money. This narration was completed sometime between 4 and 5 P.M. During this time a United States Commissioner was available before whom Walton could have been taken, but instead, the officers, with Walton's assistance, took time to prepare a typewritten statement of what he had told them. This statement was completed sometime after 6 P.M. The United States Commissioner was not then available until the following day at 1:30 P.M., when Walton was charged and arraigned. When the confession was offered in evidence an objection to its admission was made on the ground that Walton had not been taken before a committing magistrate without unnecessary delay after his arrest. After a hearing out of the presence of the jury, the court overruled the objection.

Rule 5(a), F.R.Cr.P., provides that an officer making an arrest under a warrant or without a warrant shall take the arrested person before the nearest available commissioner or committing magistrate "without unnecessary delay", and if the person has been arrested without a warrant, a complaint shall be filed forthwith. It is now settled that if an arrested person makes incriminating statements or confessions after an arresting officer has failed to comply with Rule 5(a), the statements or confessions are not admissible in evidence against the accused even though voluntarily made. Mallory v. United States, 354 U.S. 449, 77 S.Ct. 1356, 1 L.Ed.2d 1479; Upshaw v. United States, 335 U.S. 410, 69 S.Ct. 170, 93 L.Ed. 100; United States v. Mitchell, 322 U.S. 65, 64 S.Ct. 896, 88 L.Ed. 1140, rehearing denied 322 U.S. 770, 64 S.Ct. 1257, 88 L.Ed. 1595; McNabb v. United States, 318 U.S. 332, 63 S.Ct. 608, 87 L.Ed. 819, rehearing denied 319 U.S. 784, 63 S.Ct. 1322, 87 L.Ed. 1727. It is equally clear from these decisions that it was not the intent of the rule that all information obtained through questioning prior to the filing of formal charges or before an accused has been taken before a committing magistrate is inadmissible. As said in Mallory: "The requirement of Rule 5(a) is part of the procedure devised by Congress for safeguarding individual rights without hampering effective and intelligent law enforcement." 354 U.S. at 453, 77 S.Ct. at 1359. In McNabb the court said: "The mere fact that a confession was made while in the custody of the police does not render it inadmissible." 318 U.S. at 346, 63 S.Ct. at 615. There is no hard and fast rule as to what constitutes unnecessary delay. Each case must be determined on its own facts. Pixley v. United States, 10 Cir., 220 F.2d 912. But if the delay in taking an arrested person before a committing magistrate is for the purpose of extracting a confession, it is a violation of Rule 5(a). The facts in this case are not at all like the facts in the Mallory case,³ but are quite similar to those in United States v. Mitchell, supra, where the accused, shortly after being brought to the police station, admitted his guilt and consented to a search of his home by officers.⁴ Here Walton, when shown the money taken from Nunn's car, immediately admitted that it was part of the money stolen from the bank, and then continued to tell the entire story.⁵ The delay in taking him before a commissioner and filing the complaint was not for the purpose of exacting admissions from him, but to give him an opportunity to complete his voluntary statement. We do not believe, under the circumstances which existed here, that investigating officers are required to refuse to permit a detained or arrested person to continue his statement for the purpose of rushing him before a committing magistrate. See United States v. Vita, 2 Cir., 294 F.2d 524, cert. denied 369 U.S. 823, 82 S.Ct. 837, 7 L.Ed.2d 788; United States v. Ladson, 2 Cir., 294 F.2d 535, cert. denied 369 U.S. 824, 82 S.Ct. 840, 7 L.Ed. 2d 789; Muldrow v. United States, 9 Cir., 281 F.2d 903; Holt v. United States, 8 Cir., 280 F.2d 273, cert. denied 365 U.S. 838, 81 S.Ct. 750, 5 L.Ed.2d 747; Perry v. United States, 102 U.S.App.D.C. 315, 253 F.2d 337, cert. denied 356 U.S. 941, 78 S.Ct. 785, 2 L.Ed.2d 816; Hollingsworth v. United States, 10 Cir., 321 F.2d 342; Gardiner v. United States, 116 U.S.App.D.C. 270, 323 F.2d 275, cert. denied 375 U.S. 976, 84 S.Ct. 495, 11 L. Ed.2d 421; United States v. Long, 6 Cir., 323 F.2d 468; Evans v. United States, 8 Cir., 325 F.2d 596; Federal Practice and Procedure, Barron, Vol. 4, § 1871, text p. 27, et seq. and 1963 Supp. thereto, p. 15 et seq. The delay to which Walton now objects had no influence whatsoever on what he told the officers. We hold that this was not an unnecessary delay as contemplated by Rule 5(a).

Prior to trial Comley and Chow moved for a severance of their trials because of Walton's confession which named them as participants in the bank robbery. It was contended that the court could not remove the prejudicial effect of this confession as to Comley and Chow by instructing the jury that it was not to be considered as evidence of their guilt.⁶ A situation such as this presents a difficult problem for the trial judge in criminal cases where there are multiple defendants who should be tried together,⁷ and requires utmost care in the exercise of his broad discretion in determining whether separate trials should be granted to co-defendants. Its...