U.S. v. DAVIS

RICHARD ROGERS, Senior District Judge

On February 23, 2005 the court held a hearing on the pretrial motions filed by the defendant. The purpose of this memorandum and order is to memorialize the rulings made by the court during the hearing and to rule upon the motions taken under advisement.

The defendant is charged in a two-count indictment. He is charged with possession of a firearm by a felon in violation of 18 U.S.C. § 922(g)[Count 1]; and possession of a firearm by a person previously convicted of domestic assault in violation of 18 U.S.C. § 922(g)[Count 2]. The charges arise from the attempted arrest of the defendant on November 10, 2004. Topeka Police Department officers, who were on routine patrol, saw the defendant in a vehicle. They knew him from previous encounters and were aware that he had an outstanding felony arrest warrant. They attempted to stop him, but he fled. The defendant led them on a high-speed chase through residential areas. The defendant ultimately stopped, but he then fled on foot. During the foot chase, one of the officers thought he saw the defendant with a handgun. He believed that the defendant pointed it in the direction of the officers on more than one occasion. The officer subsequently fired his weapon and one of the shots struck the defendant. The defendant was arrested and taken to a local hospital for treatment.

The defendant filed the following motions: (1) motion for discovery; (2) motion to suppress involuntary statement; (3) motion to suppress statement in violation of the Sixth Amendment; and (4) motion to dismiss Count 2.

The defendant seeks to dismiss Count 2 because court records show that he was not convicted of domestic assault, rather he was convicted only of simple assault. The government, in its response, has conceded that the defendant's argument is correct. Accordingly, the court dismissed Count 2 during the hearing.

The defendant contends that any statements made at the hospital following his arrest were not made voluntarily. He contends that he was not capable of waiving his constitutional right to remain silent at the hospital due to his medical condition.

The court heard testimony from one of the officers who made contact with the defendant at the hospital. Based upon that evidence, the court makes the following findings of fact and conclusions of law.

Findings of Fact

1. The defendant was shot during the foot chase at approximately 11:00 a.m. He was then transported to a local hospital and treated in the emergency room.

2. At approximately 1:00 p.m., Detectives Kennedy and Hill of the Topeka Police Department arrived at the hospital to talk with the defendant. The defendant was still in the emergency area of the hospital at that time. He was in a room with his mother at his side. He was lying on a bed with an oxygen tube in his nose. Detective Kennedy noticed that the defendant's shoulder had been bandaged. He thought the defendant appeared to be in some distress, but he was not moaning or crying out. He did not believe the defendant was under the influence of any medication. He thought the defendant was capable of responding to questions. Health care personnel were in and out of the room. At one time, the defendant complained to a nurse that he was having trouble breathing. The nurse, however, found no problem.

3. Detective Hill read the defendant the Miranda warning. Detective Hill asked him if he understood his rights. The defendant nodded his head that he did. Detective Hill then asked the defendant if he was willing to answer questions. Again, the defendant nodded his head affirmatively.

4. The defendant was then asked: "Is the gun yours?" The defendant replied: "I don't know whose gun it is." The defendant was then asked: "Are the drugs yours?" The defendant made no response. Several more questions were asked by the detectives, but the defendant made no responses. He turned his head away from the detectives. At that point, the interview was terminated by the detectives. The interview had lasted five to ten minutes. None of the health care personnel suggested that the officers should not be there or that they should leave.

Conclusions of Law

1. A defendant's waiver of his Miranda rights is valid if it is voluntary, knowing and intelligent. Miranda v. Arizona, 384 U.S. 436, 444 (1966); Moran v. Burbine, 475 U.S. 412, 421 (1986). The fact that a suspect is under the influence of drugs or medication is irrelevant if the defendant's statement was "the product of a rational intellect and a free will." Mincey v. Arizona, 437 U.S. 385, 398 (1978) (holding that an interrogation was not voluntary where defendant was in the intensive care unit of hospital, was unable to speak and had to communicate through writing, repeatedly asked for the interview to cease, gave some incoherent answers, and lost consciousness several times during the interrogation) (quoting Townsend v. Sain, 372 U.S. 293, 307 (1963)). In assessing the validity of the waiver and the voluntariness of the statement, the court must consider the totality of the circumstances. Moran, 412 U.S. at 421; Crane v. Kentucky, 476 U.S. 683, 691 (1986).

2. The court finds that the defendant's waiver was knowing, voluntary and intelligent. The defendant had undergone the trauma of a gunshot wound. However, he was capable of answering questions. His mother was at his side and hospital personnel were in and out of his room. There was no evidence that the defendant failed to understand the questions put forth by the officers. There was no evidence that he was confused or incoherent. The testimony offered by Detective Kennedy indicated that the defendant appeared to understand the questions and appeared capable of answering them. Given the totality of the circumstances as indicated by the evidence provided, the court must find that the waiver was voluntary and the statements made by the defendant were voluntary.

3. Accordingly, the defendant's motion to suppress the statements made at the hospital must be denied.

The defendant seeks to suppress certain statements he made on November 18, 2004 following a court hearing. He suggests that the statements were not made as suggested by the government and were not simply voluntary utterances.

At the hearing, the court heard the testimony of Russ Klump and Daniel Jaramillo, Topeka Police Department officers assigned to the Alcohol, Tobacco and Firearms Task Force. Based upon that evidence, the court makes the following findings of fact and conclusions of law.

Findings of Fact

1. On November 18, 2004, the defendant was taken to federal court for an initial appearance on the charges in this case. He was escorted from the Shawnee County Jail to the hearing by TPD Officers Klump and Jaramillo. During the brief hearing, the defendant was given a copy of the complaint in the case and a supporting affidavit. The defendant was also advised that he had the right to remain silent and that any statements he made could later be used against him. Counsel was also appointed to represent the defendant.

2. The defendant has prior experience with the criminal justice system. He has had several prior encounters with law enforcement officers.

3. Following the hearing, the defendant was returned to the Shawnee County Jail by Officers Klump and Jaramillo. As the defendant was being escorted to a vehicle by the officers, he began talking to them. The comments made by the defendant were made without any questions or prompting by the officers. The defendant indicated that the affidavit was wrong because there were four shots fired by the officers, not three as stated in the affidavit. He also said he did not point the firearm at the officers and he was running to simply get rid of the firearm. He used the slang expression "dump the thumper" to convey his idea that he was trying to get rid of the gun. Officer Klump initially merely nodded his head, acknowledging that he had heard the statements. He subsequently explained that an investigation concerning the number of shots that had been fired was being conducted.

Conclusion of Law

1. The Sixth Amendment is not violated where the defendant volunteers a statement in the absence of questioning, encouragement, or deliberate elicitation by law enforcement personnel. See Kuhlmann v. Wilson, 477 U.S. 436, 459 (1986) (to trigger applicability of Sixth Amendment protections "the defendant must demonstrate that the police . . . took some action, beyond merely listening, that was designed deliberately to elicit incriminating remarks"); Maine v. Moulton, 474 U.S. 159, 176 (1985) (Sixth Amendment not violated "whenever — by luck or happenstance — the [government] obtains incriminating statements from the accused after the right to counsel has attached").

2. The court finds that the statements by the defendant during his return to jail were spontaneously volunteered and were not the product of custodial interrogation. The defendant made the statements without any questioning or encouragement by the officers. The statements were not the product of any conversation initiated by the officers, but rather were simply volunteered by the defendant. Accordingly, the defendant's motion to suppress must be denied.

The defendant seeks the following materials and documents pursuant to Fed.R.Crim.P. 16 and Brady v. Maryland, 373 U.S. 83 (1963): (1) copies of dispatch notes and audio tapes regarding radio traffic during the pursuit and arrest of the defendant; (2) copies of videotapes of the interviews with Officers McCarter and Geller; (3) copies of the reports related to the internal investigation into the shooting of the defendant by Officer McCarter; (4) copies of disciplinary actions against Officer McCarter; (5) copy of the inventory of items seized from vehicle driven by the defendant; and (6) copy of the report of fingerprint analysis of firearm charged in the indictment.

The government does not object to item nos. (1), (5) and (6). The government agrees to produce these items. The government does object to the remaining items. The government notes that it has already produced the reports of the officers to the defendant. The government has indicated that it will provide those materials that are relevant to the investigation of the defendant, but not the materials which were gathered for the purpose of the internal Topeka Police Department investigation of the officers' actions. The government objects to production of the following: the videotaped interviews of Officers McCarter and Geller, the reports related to the internal Topeka Police Department investigation of the shooting, and the disciplinary file of Officer McCarter. The government has requested that if the court believes these items should be disclosed or considered, then the court should first consider them in camera before releasing them to the defendant.

The court shall review the videotaped interviews of the officers and the reports related to the internal investigation of the shooting. The court believes that there could be some potentially relevant information in these matters. Accordingly, the court shall review them in camera and determine if any of these materials should be provided to the defendant.

The court shall not, however, order the production of Officer McCarter's disciplinary file. The defendant has not sufficiently demonstrated that this file could contain any relevant information.

Accordingly, the court shall grant the defendant's motion in part and deny it in part. The court grants the motion on the matters where the government has not raised any objection. The court directs the government provide the videotaped interviews and reports related to the internal investigation for an in camera review by the court. The remainder of the motion is denied.

IT IS THEREFORE ORDERED that defendant's motion to dismiss Count 2 (Doc. # 14) be hereby granted. Count 2 is hereby dismissed.

IT IS FURTHER ORDERED that defendant's motion to suppress involuntary statement (Doc. # 15) be hereby denied.

IT IS FURTHER ORDERED that defendant's motion to suppress statement obtained in violation of Sixth Amendment (Doc. # 16) be hereby denied.

IT IS FURTHER ORDERED that defendant's motion for discovery (Doc. # 17) be hereby granted in part and denied in part as set forth in the foregoing memorandum.