682 F.2d 168 | 8th Cir. | 1982
Lead Opinion
On May 21, 1981, the appellant, Robert Eagle Elk, Jr. was indicted for voluntary manslaughter under 18 U.S.C. §§ 1153 and 1112 (1976). On November 26, 1981, a jury returned a verdict of guilty on the lesser included offense of involuntary manslaughter, and the district court
Only a brief outline of the facts is necessary for purposes of this decision. Eagle Elk’s conviction stemmed from the beating death of Richard Schreiner on April 25, 1981. Eagle Elk, Schreiner, and another individual, Anthony Jacobs, were traveling together on the evening of April 25,1981, in Eagle Elk’s automobile. Schreiner was carrying a rifle. Apparently, an argument broke out between Schreiner and Eagle Elk. According to Eagle Elk, Schreiner poked him in the side with the rifle, and Eagle Elk stopped the automobile. Schreiner jumped
Eagle Elk testified at trial that Jacobs became involved in the affray when, as Jacobs was attempting to get out of the back seat of the car, Schreiner pushed the car door and pinned Jacobs’ legs between the car door and the car. A fight between Jacobs and Schreiner then ensued in which Jacobs, brandishing a knife, slashed at Schreiner. According to Eagle Elk, Jacobs then grabbed the rifle laying against the car and struck Schreiner in the head with the rifle, knocking him to the ground. Jacobs then smashed the rifle butt over Schreiner’s head again with sufficient force to break the stock of the rifle into two pieces.
Anthony Jacobs denied that he participated in any way in the altercation. According to Jacobs, it was Eagle Elk who, after striking Schreiner in the face with his fist and knocking him to the ground, struck Schreiner in the head a total of four times with the butt of the gun.
After his arrest,
Eagle Elk argues that under Edwards v. Arizona, 451 U.S. 477, 101 S.Ct. 1880, 68 L.Ed.2d 378 (1981), his incriminating statement allegedly made after requesting to see his counsel should have been suppressed. In Edwards the Supreme Court held that interrogation must cease when an accused requests counsel, and that an accused is not subject to further interrogation unless he initiates further conversation with the police. Id. at 484-85, 101 S.Ct. at 1884-85. We do not believe Edwards controls the instant case in that at the suppression hearing the trial court accepted Agent Diem’s testimony that Eagle Elk did not request an attorney until after he had made the incriminating statement. Such findings of fact by the trial court in suppression proceedings are subject to reversal only if they are found to be clearly erroneous, see, e.g., United States v. Poitra, 661 F.2d 98, 98 (8th Cir. 1981); United States v. Doby, 598 F.2d 1137, 1140 (8th Cir. 1979), and we cannot conclude on the basis of the record that the trial court made a clearly erroneous determination in the instant case.
This court held that “Fields did not knowingly and intelligently waive his right to have counsel present at the interrogation described above. Fields’ incriminating statements were, therefore, not voluntarily made and should have been suppressed.” Fields v. Wyrick, supra, at 158. Without engaging in an extensive discussion of the court’s reasoning which led to this conclusion, we simply note that we are unable to distinguish the relevant factual circumstances presented by the instant case from those in Fields. Therefore, on the basis of this court’s decision in that case, we reverse appellant’s conviction for involuntary manslaughter, and remand to the district court with directions to order the release of the appellant or provide a new trial within a reasonable period of time.
. The Honorable Andrew W. Bogue, Chief Judge, United States District Court for the District of South Dakota.
. Eagle Elk was arrested on April 28, 1981. On April 25, 1981, the night of Schreiner’s death, Eagle Elk had been interviewed by an investigator with the Oglala Sioux Tribal Police. Pri- or to this interview, Eagle Elk was fully advised of his constitutional rights. [Tr. 44]
. As noted previously, Eagle Elk has raised several other issues on this appeal relating to rulings made by the district court during trial proceedings. In light of our reversal of Eagle Elk’s conviction, we need not reach these other assignments of error. However, because Eagle Elk may undergo a second trial, at least brief mention should be made of the appellant’s challenges to a district court ruling precluding the appellant from using Anthony Jacobs’ prior conviction on petty theft for impeachment purposes.
Jacobs’ conviction stemmed from the theft of gunpowder from his father’s garage. The district court, citing United States v. Fearwell, 595 F.2d 771, 776 (D.C.Cir.1978), refused to allow defendant to impeach Jacobs on the basis of his conviction because it determined that petit theft did not involve “dishonesty or false statement” as required under Fed.R.Evid. 609(a)(2). Cf. United States v. Hayes, 553 F.2d 824, 827 (2d Cir.), cert. denied, 434 U.S. 867, 98 S.Ct. 204, 54 L.Ed.2d 143 (1977) (dicta—petit larceny not admissible under Rule 609(a)(2)); Government of Virgin Islands v. Testamark, 528 F.2d 742, 743 (3d Cir. 1976) (petit larceny does not necessarily involve crimen falsi so as to be admissible for impeachment purposes). But cf. United States v. Brown, 603 F.2d 1022, 1029 (1st Cir. 1979) (petit larceny conviction could be used for impeachment); United States v. Carden, 529 F.2d 443, 446 (5th Cir.), cert. denied, 429 U.S. 848, 97 S.Ct. 134, 50 L.Ed.2d 121 (1976) (petit larceny admissible since it involved dishonesty). In the circumstances of this case we cannot conclude that the district court erred in refusing to admit Jacobs’ prior petit theft convictions.
Concurrence Opinion
concurring.
I concur in the result in this case only because I am firmly convinced that it is required by this court’s recent broad holding in Fields v. Wyrick, supra. Nevertheless, for the reasons stated in my dissenting opinion in Fields, I am steadfast in my belief that Fields was wrongly decided and inconsistent with this court’s prior decision in United States v. Little Bear, 583 F.2d 411 (8th Cir. 1978).
The majority’s conclusion in Fields v. Wyrick that the defendant’s confession was involuntary does not rest on considerations of coercive conduct by the polygraph administrator, Fields’ age, intelligence, emotional condition, or any other factors which
Thus, I am left with no alternative but to conclude that the majority in Fields has created a per se rule that, even though a defendant has been fully advised of his constitutional rights and has consented to a polygraph interrogation, his confession made after he has been advised that his polygraph examination shows deceit is involuntary unless the defendant is given an additional Miranda warning between the polygraph and the immediately subsequent questioning, or the government has explicitly advised the defendant prior to the polygraph that he may undergo questioning after the polygraph examination. Apparently, this rule obtains regardless of whether the defendant might be considered to understand completely his rights to remain silent and to have an attorney present at any time. See Fields v. Wyrick, supra, at 163 (Ross, J., dissenting). As I noted in Fields, the majority in Fields failed to offer convincing support for such a rule.
In distinguishing Little Bear, the majority in Fields relied primarily on the fact that “Little Bear had not retained counsel when she went to take the polygraph,” and therefore, “the Court was not required to determine whether the agent’s procedure had deprived Little Bear of a previously asserted right to deal with the authorities through counsel.” Fields v. Wyrick, supra, at 161, n. 13. However, it must be noted that Fields, although retaining counsel, had not asserted his right to counsel at the polygraph examination, and in fact, as the majority noted in Fields, must be viewed as having initiated the further dialogue with authorities. Id. at 158. As the Supreme Court’s opinion in Edwards v. Arizona clearly indicates, in either the Little Bear factual circumstances or the Fields factual circumstances, the basic standard for determining the voluntariness of the confession is the same, i.e., “whether a valid waiver of the right to counsel and the right to silence had occurred, that is, whether the purported waiver is knowing and intelligent * * * under the totality of the circumstances * * 451 U.S. at 486 n.9, 101 S.Ct. at 1885 n.9. See id. at 482, 101 S.Ct. at 1883.
The majority in Fields also appears to have found some distinguishing significance in the label attached to and the wording of the form Little Bear signed in consenting to the polygraph examination. The FBI form which Little Bear signed was entitled “Consent to be Interviewed with Polygraph” and stated that she agreed to the “use of a polygraph * * * during this interview or any part of it.” United States v. Little Bear, supra, 583 F.2d at 412. The majority in Fields construed this form to somehow indicate a broader scope of consent to be interrogated than did the CID form in Fields.
First, it must be emphatically noted that there is absolutely no indication in the opinion in Little Bear that the court’s decision even remotely turned on the wording of the FBI polygraph consent form. Furthermore, placing any legal or practical significance upon the use of the word “interview” in the FBI consent form used in Little Bear appears to raise inconsequential form over real substance.
Little Bear, Fields and the instant case all involve factual circumstances in which a defendant has clearly and fully been advised on at least two occasions prior to the administration of the polygraph of the constitutional rights to remain silent and to the presence of counsel during any questioning by the authorities. Furthermore, I can find no evidence in any of these cases that the defendants did not fully comprehend the meaning and the consequences of a waiver of those rights. As I stated in Fields, in these circumstances, “it is difficult to un
. As I noted in my dissent in Fields v. Wyrick; 682 F.2d 154, at 162 (8th Cir. 1982) (Ross, J., dissenting), the following detailed statement of rights was read to Fields before the polygraph was administered:
“Before I ask you any questions, you must understand your rights. You do not have to answer my questions or say anything. Anything you say or do can be used as evidence against you in a criminal trial. You have a right to talk to a lawyer before questioning or have a lawyer present with you during the questioning. This lawyer can be a civilian lawyer of your own choice, or a military lawyer, detailed for you at no expense to you. Also, you may ask for a military lawyer of your choice by name and he will be detailed for you if superiors determine he’s reasonably available. If you are now going to discuss the offense under investigation, which is rape, with or without a lawyer present, you have a right to stop answering questions at any time or speak to a lawyer before answering further, even if you sign a waiver certificate. Do you want a lawyer at this time?” Defendant answered “No.”
State v. Fields, 538 S.W.2d 348, 350 n.1 (Mo.Ct.App.1976) (emphasis added).
Apparently, the majority in Fields has now engrafted an additional requirement that unless additional Miranda warnings are given after the polygraph but before further questioning, the initial Miranda warnings and waiver must be supplemented by not only advising the defendant that anything he says or does during the questioning may be used against him, and that he may stop answering questions or speak to a lawyer at any time, but must advise the defendant that questions may be asked after the polygraph examination had been completed.
. Although the majority in Fields refers to the Supreme Court’s recent decision in Edwards v. Arizona, 451 U.S. 477, 101 S.Ct. 1880, 68 L.Ed.2d 378 (1981) as somehow providing some support for its holding in Fields, see, e.g., Fields v. Wyrick, supra, at 158, I am at a loss to see how Edwards has any relevance whatsoever to the question presented in Fields or in the instant case. Moreover, the majority in Fields appears to admit this when it states: “The per se rule enumerated in Edwards does not resolve the issue present here,” since Fields “initiated further dialogue with the authorities after his right to counsel had been invoked.” Fields v. Wyrick, supra, at 158.
As the Supreme Court noted in Edwards: If * * * in the course of a meeting initiated by the accused, the conversation is not wholly one-sided, it is likely that the officers will say or do something that clearly would be “interrogation.” In that event, the question would be whether a valid waiver of the right to counsel and the right to silence had occurred, that is, whether the purported waiver was knowing and intelligent and found to be so under the totality of the circumstances, including the necessary fact that the accused, not the police, reopened the dialogue with the authorities.
Concurrence Opinion
concurring.
I concur in the per curiam opinion of the court only because Fields v. Wyrick, 682 F.2d 154 (8th Cir. 1982) requires this action. I agree with Judge Ross in his specially concurring opinion that Fields v. Wyrick is in conflict with United States v. Little Bear, 583 F.2d 411 (8th Cir. 1978). Fields v. Wyrick, supra, relies on Henry v. Dees, 658 F.2d 406 (5th Cir. 1981) although, unlike Henry, it did not involve a defendant with limited mental ability. I agree with the reasoning in Judge Ross’ specially concurring opinion. I am concerned that Fields v. Wyrick has created a per se rule that finds no waiver even when repeated Miranda warnings have been given.