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  • United States v. Maynard Francis Hayes, 385 F.2d 375, 4th Cir. (1967)

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    Filed: 1967-11-02 Precedential Status: Precedential Citations: 385 F.2d 375 Docket: 11032

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    Filed: 1967-11-02 Precedential Status: Precedential Citations: 385 F.2d 375 Docket: 11032

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    15 views4 pages

    United States v. Maynard Francis Hayes, 385 F.2d 375, 4th Cir. (1967)

    Uploaded by

    Scribd Government Docs
    Filed: 1967-11-02 Precedential Status: Precedential Citations: 385 F.2d 375 Docket: 11032

    Copyright:

    Public Domain
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    of 4

    385 F.

    2d 375

    UNITED STATES of America, Appellee,


    v.
    Maynard Francis HAYES, Appellant.
    No. 11032.

    United States Court of Appeals Fourth Circuit.


    Argued October 2, 1967.
    Decided November 2, 1967.

    Kenneth Lasson, Baltimore, Md. (Court-appointed counsel), [Robert G.


    Fisher and Nelson B. Lasson, Baltimore, Md., on the brief], for appellant.
    Alan I. Baron, Asst. U. S. Atty. (Stephen H. Sachs, U. S. Atty., on the
    brief), for appellee.
    Before HAYNSWORTH, Chief Judge, SOBELOFF and BUTZNER,
    Circuit Judges.
    SOBELOFF, Circuit Judge:

    Maynard Francis Hayes appeals his conviction on four counts for transporting
    falsely made checks in interstate commerce in violation of 18 U.S.C.A. 2314.
    His sole contention is that certain incriminating statements elicited from him
    and used against him at trial were obtained in contravention of his
    constitutional rights as enunciated in the Supreme Court's recent Miranda
    decision.1 After careful consideration of the circumstances in this case, we
    affirm the conviction.

    Acting on an outstanding federal warrant, four F.B.I. agents arrested Hayes in


    Atlantic City, New Jersey at about 1:45 p. m. on March 7, 1966. After
    transporting him to the local police station, the agents began their interrogation
    by identifying themselves and warning Hayes in a deliberate, conversational
    tone that he was not required to make any statements, that any statements he did
    make could be used against him in court, that he could have the services of a
    lawyer before making any statements, and that if he could not afford one, a
    lawyer would be retained for him. This the appellant does not dispute. He keys

    his appeal to the fact that following these warnings, he was not asked whether
    he understood them or whether he desired counsel. Nor did he volunteer such
    information. He asserts that as a matter of law in the absence of an express
    statement he could not have made an intelligent, knowledgeable and voluntary
    waiver of his Fifth and Sixth Amendment rights.
    3

    Following the warnings and before any questioning began, Hayes requested
    and was given permission to make a telephone call. The record is devoid of any
    information about the call; it is therefore unknown whom he called or what he
    discussed. Upon his return from the phone, he was asked leading questions and
    he responded incriminatingly. He did not volunteer any statements, nor did he
    make a confession. After approximately thirty minutes of questioning, Hayes
    declared that he would provide no additional information and demanded
    consultation with an attorney before signing anything. At this point, all
    interrogation ceased.

    Appellant is correct in his position that a heavy burden rests upon the
    government to prove that a person in custody "knowingly and intelligently
    waived his privilege against self-incrimination and his right to retained or
    appointed counsel." Miranda v. State of Arizona, supra, 384 U.S. at 475, 86
    S.Ct. at 1628. However, he is inaccurate when he contends that federal courts
    apply a talismanic approach in determining whether this burden has been
    satisfied. Just as the mere signing of a boilerplate statement to the effect that a
    defendant is knowingly waiving his rights will not discharge the government's
    burden, so the mere absence of such a statement will not preclude as a matter of
    law the possibility of an effective waiver.

    In reiterating the strong presumption against waiver and the high standards of
    proof needed to overcome this presumption, the Court in Miranda relied upon
    Johnson v. Zerbst, 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938), in which
    the Court unequivocally stated:

    "The determination of whether here has been an intelligent waiver of the right
    to counsel must depend, in each case, upon the particular facts and
    circumstances surrounding that case, including the background, experience, and
    conduct of the accused."

    Johnson v. Zerbst, supra, 304 U.S. at 464, 58 S.Ct. at 1023. Similarly, in a


    post-Miranda decision, the Fifth Circuit observed:

    "* * * the cases in which it is clear that the warnings have been given must be

    considered on their own facts in order to determine the question of waiver. The
    courts must do this on an ad hoc basis, since no per se rule has thus far been
    adopted dealing with this problem."
    9

    Narro v. United States, 5 Cir., 370 F.2d 329-330 (1966).

    10

    Thus, we cannot accept appellant's suggestion that because he did not make a
    statement written or oral that he fully understood and voluntarily waived
    his rights after admittedly receiving the appropriate warnings, his subsequent
    answers were automatically rendered inadmissible. Of course, the attendant
    facts must show clearly and convincingly that he did relinquish his
    constitutional rights knowingly, intelligently and voluntarily, but a statement by
    the defendant to that effect is not an essential link in the chain of proof. On the
    other hand, mere silence of the accused followed by grudging responses to
    leading questions will be entitled to very little probative value in light of the
    inherently coercive atmosphere of in-custody interrogation. The government
    will have to prove more.

    11

    Miranda admonishes: "The warnings required and the waiver necessary in


    accordance with our opinion today are, in the absence of a fully effective
    equivalent, prerequisites to the admissibility of any statement made by a
    defendant." (Emphasis supplied.) Miranda v. State of Arizona, supra, 384 U.S.
    at 476, 86 S.Ct. at 1629. We simply decide today that strong and unmistakable
    circumstances, upon occasion, may satisfactorily establish such an equivalent.

    12

    We turn now to an examination of the circumstances of the present case to


    determine whether they are sufficiently weighty to demonstrate defendant's
    knowing and voluntary waiver. Appellant, admitting the sufficiency of the
    warnings, requested a hearing before the trial court on the "voluntariness" of
    the contested statements. At that hearing appellant's attorney directed his
    questioning to the absence of any declaration by the defendant that he
    understood his rights. The lower court found the incriminating statements
    "voluntary" and hence admissible, thereby impliedly finding that Hayes had
    made a constitutionally permissible waiver. This implicit finding is wellsubstantiated.

    13

    Hayes was captured in the middle of the afternoon and does not allege any
    physical or psychological coercion. The agents testified that Hayes appeared
    physically healthy and alert. When he arrived at the station house he was fully
    advised of his constitutional rights. When he immediately thereafter sought
    leave to telephone someone, leave was granted. As soon as he indicated a wish

    that the questioning be terminated and that he be allowed to consult an attorney,


    the F.B.I. agents complied with his request. That he had the presence of mind
    and the liberty to make a phone call and to demand an attorney shortly after
    receiving the requisite warnings strongly supports the inference that Hayes
    understood the warnings and voluntarily relinquished his rights.
    14

    Against these telling circumstances, the appellant offered no evidence. He


    produced no witnesses putting in question his apparent intellectual
    endowments. Moreover, it is noteworthy that at no stage in the proceedings has
    the appellant ever denied that he understood the warnings given him, and while
    a defendant does not have the obligation to testify himself or to offer testimony,
    a court cannot supply evidence that is lacking. Cf. Griffin v. State of California,
    380 U. S. 609, 85 S.Ct. 1229, 14 L.Ed.2d 106 (1965). The poise and cunning
    he displayed, according to the testimony of eyewitnesses, in passing in rapid
    succession a series of false checks in fashionable apparel stores in the suburbs
    of Washington belie the hypothetical arguments made by his counsel on appeal
    that Hayes may have become unnerved after his capture and therefore unable to
    think clearly.

    15

    In light of the strong circumstances appearing here, we conclude that Hayes did
    in fact make an intelligent, knowing and voluntary waiver and that the
    incriminating statements were properly admitted.

    16

    Affirmed.

    Notes:
    1

    Miranda v. State of Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694
    (1966). This case is directly applicable here, since the trial was held after June
    13, 1966. See Johnson v. State of New Jersey, 384 U.S. 719, 86 S.Ct. 1772, 16
    L.Ed.2d 882 (1966)

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