Filed: Patrick Fisher
Filed: Patrick Fisher
JUN 2 2000
PATRICK FISHER
Clerk
v.
SHAWN E. STEWART,
Defendant-Appellant.
This order and judgment is not binding precedent, except under the doctrines of
law of the case, res judicata, and collateral estoppel. The court generally disfavors the
citation of orders and judgments; nevertheless, an order and judgment may be cited under
the terms and conditions of 10th Cir. R. 36.3.
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On January 15, 1999, hearing was held on Stewarts motion to suppress, and on January
28, 1999, the district court, in a detailed memorandum and order, denied the motion to
suppress. United States v. Stewart, 51 F.Supp.2d 1136 (D.Kan. 1999). On February 2,
1999, Stewart, still represented by retained counsel, filed a petition with the district court
to enter a plea of guilty pursuant to a plea agreement with the government. The petition
itself was a detailed one. After hearing, the district court accepted Stewarts plea of
guilty to eight counts of the 12-count indictment.
On March 23, 1999, Stewart, with new counsel, filed a motion to vacate and set
aside his pleas of guilty and to reopen the hearing on his motion to suppress and allow
him to present additional evidence. Hearing on that motion was held on April 14 and 20,
1999. On May 7, 1999, the district court denied that motion, in part, and granted it, in
part. During the two hearings on this matter, the district court allowed Stewarts newly
retained counsel to present additional evidence in connection with the motion to suppress,
and, the motion, reconsidered de novo, was then denied. At the same time, the district
court denied Stewarts motion to vacate and set aside his pleas of guilty. United States v.
Stewart, 51 F.Supp.2d 1147 (D. Kan. 1999). On May 19, 1999, Stewart filed his first
notice of appeal. Our appeal No. 99-3159. On August 11, 1999, Stewart was sentenced
and a second notice of appeal was filed on August 18, 1999. Our appeal No. 99-3270.
By our order, the two appeals were consolidated. On appeal, Stewart argues that the
district court erred in denying his motion to suppress and his motion to vacate and set
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Shop. At about this point Stewart asked Detective Brown if he was there to talk about a
bank robbery in Lawrence, which comment alerted Detective Brown. The interview
ended when Stewart said he was done talking. The following evening, September 5,
1998, at about 8:20, Detective Brown accompanied by F.B.I. Special Agent Phillip
Andrews appeared at the Shawnee County jail to interview Stewart. While being escorted
to an interview room from his cell by a jail attendant, Stewart told the attendant that he
did not want to talk to anyone and wanted a lawyer. Upon seeing Detective Brown,
Stewart told him that he did not want to talk and seemed angry. Andrews then
identified himself and showed Stewart his F.B.I. badge, whereupon Stewart began asking
questions about the bank robbery in Lawrence, and Andrews, at the suppression hearing,
testified that he told Stewart that he could not talk to him until he was advised of his
rights. Stewart was then advised of his Miranda rights and at that time Stewart signed a
written waiver of his rights. During the ensuing interview, Stewart gave, inter alia, a
detailed verbal confession to the robberies at Sonic, Sharks Surf Shop in Lawrence and
Wendys in Topeka. This interview ended about 2:00 a.m. September 6, 1998.
On September 6, 1998, at about 3:28 p.m., Detective Brown returned to the
Shawnee County jail to further interview Stewart, who was again advised of his Miranda
rights, which he waived and indicated he would speak about the several robberies in
question. Stewart then gave the officers a written statement, in his own handwriting.
At the hearing on Stewarts motion to suppress, the government called five
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witnesses, including two guards at the Shawnee County jail who had escorted Stewart to
and from the interview room. Each testified that Stewart was adamantly adverse to do
any talking. Other government witnesses were Detective Low of the Topeka Police
Department, Detective Brown of the Lawrence Police Department and Phillip Andrews,
Special Agent for the F.B.I. Their testimony paralleled the foregoing recitation of the
background facts. There was testimony elicited from these witnesses relating to the fact
that very shortly after Stewarts arrest, his mother was taken to a hospital on an
emergency basis. At the conclusion of the governments presentation of evidence,
counsel for Stewart announced that there would be no witnesses on behalf of Stewart. It
was on this state of the record that the district court, after taking the matter under
advisement, on January 28, 1999, denied the motion to suppress.
In denying the motion to suppress, the district court, in a very detailed
memorandum and order, held, in essence, that though Stewart had initially indicated he
didnt want to do any talking and perhaps, though it was uncertain, had indicated he
wanted a lawyer appointed to represent him, Stewart later changed his mind, particularly
after Special Agent Andrews began participating in the interviewing, and had voluntarily
waived his right to remain silent, and, after signing a written waiver, made verbal
confessions which the following day were reduced in Stewarts own handwritten
confession. The district court did suppress whatever statements were made by Stewart in
his second interview with Detective Low, which statements were in reality exculpatory,
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signed several waivers of his Miranda rights and verbally confessed which confession
he later wrote in his own handwriting. The district court did not err in denying Stewarts
motion to suppress his statements to Detective Brown and Special Agent Andrews. In
support of our resolution of this issue, see Michigan v. Mosley, 423 U.S. 96 (1975) and
United States v. Glover, 104 F.3d 1570 (10th Cir. 1997).
At the hearing on Stewarts motion to vacate and set aside his pleas of guilty and
to reopen the hearing on his motion to suppress, counsel called four witnesses: Carlson, a
corrections specialist at the Shawnee County jail, David McCoy, Stewarts step-father,
Patricia Ann Davis, Stewarts mother, and Stewart. At this hearing, emphasis was placed
on the fact that in the early morning hours of September 5, 1999, Stewarts mother had
been taken to a hospital on an emergency basis and in this connection Stewart testified
that Brown and Andrews, in questioning him, had improperly advised him in one form or
another, that if he cooperated they would let him communicate with his mother. Also,
Stewart testified that he really didnt understand his plea agreement with the government,
and particularly the sentence he would receive. In this regard, the record before us does
not include the sentence imposed. It would appear that in fact Stewart was later
sentenced to imprisonment for 378 months. United States v. Stewart, No. 98-40097-01SAC, 1999 W.L. 706156 (D. Kan. Aug. 18, 1999).
At the hearing on the motion to vacate and reconsider, the government called two
witnesses, Detective Brown and Steven Rosel, Stewarts initial attorney. Their testimony
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discretion.
Judgment affirmed.
Entered for the Court,
Robert H. McWilliams
Senior Circuit Judge
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