United States v. Robert Eagle Elk, Jr., A/K/A Bobby Bear

682 F.2d 168, 1982 U.S. App. LEXIS 17819, 11 Fed. R. Serv. 103

• Court: Court of Appeals for the Eighth Circuit
• Decided: June 30, 1982
• Docket: 81-2425
• Status: Published

Opinions

PER CURIAM.

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 court¹ enteied judgment on December 11, 1981. Of the several trial court errors upon which Eagle Elk grounds this appeal only his assertion that the trial court erred in failing to suppress a statement that he made to a federal investigator following a polygraph examination concerns us on appeal. For the reasons set forth herein, we reverse.

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 out of the car and while threatening Eagle Elk, cocked, aimed and pulled the trigger on the rifle. When the rifle failed to fire, Eagle Elk grabbed the rifle from Schreiner and struck him in the face with a fist. Schreiner then took out a pistol and cocked the pistol while again threatening Eagle Elk. Eagle Elk struck Schreiner on the left side of the neck with the butt of the rifle. The blow knocked Schreiner to the ground. At this point, he set the rifle next to the passenger side of the automobile and took cover.

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,² Eagle Elk, upon the advice of counsel, volunteered to undergo a polygraph examination on July 23, 1981. Eagle Elk’s counsel was not present while the examination was being conducted. The examination was conducted by a Federal Bureau of Investigation officer, Agent Diem. Prior to being given the polygraph, Eagle Elk was advised by Agent Diem of his Miranda rights, signed a form stating that he understood those rights, and signed a polygraph interview consent form. The examination was conducted outside the presence of Eagle Elk’s counsel. According to Eagle Elk, after the polygraph examination was completed, Agent Diem advised him that he was not telling the truth, and continued the interrogation. The government admitted that appellant was not given an additional Miranda warning after the polygraph examination but prior to this interrogation. During this interrogation Eagle Elk made an incriminating statement to the effect that he had struck Schreiner twice in the head with the rifle. According to Eagle Elk he requested to see his attorney prior to making this incriminating statement. However, Agent Diem testified at a suppression hearing held October 13, 1981, that Eagle Elk had not requested to see his attorney until after the incriminating statement had been made.

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.

However, Eagle Elk also contends that his incriminating statement should have been suppressed because, in the absence of an additional Miranda warning after the polygraph examination but prior to further interrogation, the statement must be viewed as not being voluntarily made. In light of this court’s recent decision in Fields v. Wyrick, 682 F.2d 154 (8th Cir. 1982), we feel compelled to agree. In Fields this court reversed a rape conviction on the grounds that it was obtained as a result of an involuntary confession. The relevant circumstances in Fields are virtually identical to those in the instant case. Fields, upon the advice of counsel, consented to a polygraph examination to be conducted by an agent of the United States Army Criminal Investigation Division (CID). Fields’ attorney was not present at the examination. Before the test was administered, Fields was fully advised of his constitutional rights and he signed a written form consenting to the polygraph examination. When the agent administering the examination advised Fields that the test indicated he was not telling the truth and subjected Fields to further interrogation without additional Miranda warnings, Fields made the incriminating statement that he had engaged in consensual sexual intercourse with the eighty-one year old victim.

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.³

1 . The Honorable Andrew W. Bogue, Chief Judge, United States District Court for the District of South Dakota.

2 . 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]

3 . 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.