Gerald Lynn Smith v. Robert D. Hannigan, Attorney General of Kansas, 13 F.3d 406, 10th Cir. (1993)
Gerald Lynn Smith v. Robert D. Hannigan, Attorney General of Kansas, 13 F.3d 406, 10th Cir. (1993)
3d 406
NOTICE: Although citation of unpublished opinions remains unfavored,
unpublished opinions may now be cited if the opinion has persuasive value on a
material issue, and a copy is attached to the citing document or, if cited in oral
argument, copies are furnished to the Court and all parties. See General Order of
November 29, 1993, suspending 10th Cir. Rule 36.3 until December 31, 1995, or
further order.
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination
of this appeal. See Fed.R.App.P. 34(a); 10th Cir. R. 34.1.9. The case is
therefore ordered submitted without oral argument.
rights. The two detectives present instructed appellant to read each of his
Miranda rights aloud and then place his initials next to each statement after he
had read it. In addition to the basic Miranda warnings, appellant read and
initialled a statement to the effect that he had read the statement of his rights
and he understood what those rights were. Finally, appellant read the following
statement aloud: "Having these rights in mind, do you wish to talk to us now?"
R. Vol. IV at 144. Either at the same time or after appellant read that question,2
one of the detectives commented that they would like to recover the stolen
property because several of the victims had no insurance. In response to that
comment, and as he was checking the "no" box to indicate that he did not wish
to talk to the police, appellant said, "The last time I talked to the police and
gave up my fences, it just got me in more trouble." Id. at 138-39; R. Vol. V at
27-28. Appellant moved to exclude that statement from the evidence.
4
The state trial court held hearings outside the presence of the jury to determine
the admissibility of the statement. The two detectives testified and, after the
court made it very clear to appellant that he could testify in this specific matter
without anything he said being used against him in the trial before the jury,
appellant elected not to testify regarding the circumstances surrounding his
statement. After hearing the detectives' testimony, the court found that the
comment by the detective was a question intended to elicit a response. It then
concluded that appellant voluntarily and knowingly waived his right to remain
silent and, therefore, that appellant's statement was admissible at trial.
"A suspect who has been advised of his rights against self-incrimination 'may
waive effectuation of these rights, provided the waiver is made voluntarily,
knowingly, and intelligently.' " United States v. Hernandez, 913 F.2d 1506,
1509 (10th Cir.1990)(quoting Miranda v. Arizona, 384 U.S. 436, 444 (1966)),
cert. denied, 499 U.S. 908 (1991). There are two requirements for waiver of
Miranda rights:
6
First,
the relinquishment of the right must have been voluntary in the sense that it
was the product of a free and deliberate choice rather than intimidation, coercion, or
deception. Second, the waiver must have been made with a full awareness of both
the nature of the right being abandoned and the consequences of the decision to
abandon it.
7
Moran v. Burbine, 475 U.S. 412, 421 (1986). The validity of the waiver must
be assessed under the totality of the circumstances. Id. "Whether a waiver was
voluntary, knowing and intelligent 'is a legal question requiring independent
factual determination.' "
Hernandez, 913 F.2d at 1509 (quoting Miller v. Fenton, 474 U.S. 104, 110
(1985)). We must accept the factual findings of the trial court as correct, unless
they are not fairly supported in the record or unless one of the exceptions in 28
U.S.C. 2254(d) applies. Church v. Sullivan, 942 F.2d 1501, 1516 (10th
Cir.1991).
After having carefully reviewed the record, we conclude that the trial court's
factual findings are supported by the evidence. We agree with the district court
that the totality of the circumstances evidences a knowing and voluntary waiver
by appellant. The trial court did not err, therefore, in allowing evidence of
appellant's statement.
10
Appellant also argues that his Sixth and Fourteenth Amendment rights were
violated because the trial court refused to replace a juror and then denied his
motion for mistrial. After the trial had begun, the court learned that one of the
jurors was an employee of one of the victim/witnesses. The trial court
interviewed the witness and found no reason to replace the juror. We agree with
the district court that there is no reason to disturb the trial court's findings on
this issue. If none of the exceptions listed in 28 U.S.C. 2254(d) applies, we
must presume that the trial court's findings in this regard are correct. See Patton
v. Yount, 467 U.S. 1025, 1036 (1984); Braley v. Shillinger, 902 F.2d 20, 22
(10th Cir.1990). To the extent that appellant challenges the presence of the
juror under state law, his claim is not cognizable on habeas review. Estelle v.
McGuire, 112 S.Ct. 475, 480 (1991).
11
Finally, appellant contends that one of the jury instructions was confusing,
inconsistent, and impermissibly allowed evidence of guilt to be considered in
determining identity on other counts.3 We will not set aside a state conviction
under 28 U.S.C. 2254 on the basis of an erroneous jury instruction unless the "
'instruction by itself so infected the entire trial that the resulting conviction
violates due process.' " United States v. Frady, 456 U.S. 152, 169 (1982)
(quoting Henderson v. Kibbe, 431 U.S. 145, 154 (1977))(further citation
omitted). The instruction at issue does not present such error. Again, to the
extent appellant argues state law error, federal habeas relief is not available.
McGuire, 112 S.Ct. at 480.
12
The judgment of the United States District Court for the District of Kansas is
AFFIRMED.
This order and judgment has no precedential value and shall not be cited, or
used by any court within the Tenth Circuit, except for purposes of establishing
the doctrines of the law of the case, res judicata, or collateral estoppel. 10th Cir.
R. 36.3
2
One of the detectives testified that the statement by the detective was made
either at about the time the appellant read the last question or right after, R.
Vol. IV at 138, and the other testified that the statement by the detective was
made after the appellant read the question, id. at 144