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United States v. Davis

United States Court of Appeals, Ninth Circuit
Apr 26, 1976
527 F.2d 1110 (9th Cir. 1976)

Summary

In Davis, the suspect's right to silence rather than the right to counsel was at issue, and "the right to silence is not protected by a per se rule."

Summary of this case from Smith v. Endell

Opinion

No. 75-1201.

December 30, 1975. Certiorari Denied April 26, 1976.

Richard A. Wasserstrom (argued), Santa Monica, Cal., for defendant-appellant.

Steven D. Rathfon, Asst. U.S. Atty. (argued), Los Angeles, Cal., for plaintiff-appellee.

Appeal from the United States District Court for the Central District of California.

Before BARNES and GOODWIN, Circuit Judges, and SCHNACKE, District Judge.

The Honorable Robert H. Schnacke, United States District Judge for the Northern District of California, sitting by designation.


OPINION


Davis appeals from his conviction, on a jury verdict of guilty, of bank robbery, in violation of 18 U.S.C. § 2113(a).

When Davis was initially questioned by an FBI agent, he indicated he didn't want to talk. The agent showed Davis a picture of Davis at the bank in the course of the robbery and said, "Are you sure you don't want to reconsider?" Davis studied the picture and then said, "Well, I guess you've got me." He then signed a waiver of all his rights under Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), agreeing to talk without a lawyer. His subsequent confession was introduced at trial, which he now contends was reversible error.

Defendant relies on U.S. v. Barnes, 432 F.2d 89, 90-91 (9th Cir. 1970). There, after suspects indicated that they didn't want to talk, they were confronted with the confession of a confederate, and questioned about it.

There was no intervening readvice about rights and no express waiver. The admissions thus obtained were properly deemed inadmissible because they were the product of pressure, by continued questioning, to induce answers despite the desire of the defendant to remain silent.

But the right to talk or remain silent is the defendant's, and no mechanical application of Miranda should prevent the informed, voluntary, and free exercise of that right [ Michigan v. Mosley, 423 U.S. 96, 96 S.Ct. 321, 46 L.Ed.2d 313 (1975)].

Here, the agent merely asked Davis if he wanted to reconsider his decision to remain silent, in view of the picture; the questioning did not resume until after Davis had voluntarily agreed that it should [see U.S. v. Jackson, 436 F.2d 39, 40-41 (9th Cir. 1970), cert. denied, 403 U.S. 906, 91 S.Ct. 2209, 29 L.Ed.2d 682 (1971)]. The Government has met its heavy burden of showing that Davis's waiver of his rights to remain silent and to counsel, signed before he confessed, was made knowingly and intelligently. There is no evidence of any psychological or physical pressure on Davis, or of over-reaching of any kind.

Davis next contends that it is not ascertainable from the record as a whole, as it must be, that the trial court made a full and independent determination of the voluntariness of his confession [see Javor v. U.S., 403 F.2d 507, 509 (9th Cir. 1968)]. However, at the hearing to determine the voluntariness of the confession, Davis withdrew his objection. At trial he made no objection to its receipt in evidence. Thus, Davis in effect abandoned his motion to suppress it.

Davis also challenges his 10-year prison sentence, on three grounds.

(a) He says it was imposed based on an inaccurate account in the presentence report of the status of his overturned state-court rape conviction. But the trial judge, before sentencing, was correctly informed of the status of the conviction.

(b) He complains that the judge discussed the presentence report and sentence with the probation officer outside Davis's presence. It was entirely proper for the judge to do so [see U.S. v. Tucker, 404 U.S. 443, 446, 92 S.Ct. 589, 30 L.Ed.2d 592 (1972)].

(c) He says the trial judge's remarks indicated he wasn't considering with an open mind Davis's remarks in mitigation of his punishment. We disagree; it was simply a case of the trial judge's exercising his prerogative to reject Davis's assessment of Davis's background.

The judgment appealed from is affirmed.


Summaries of

United States v. Davis

United States Court of Appeals, Ninth Circuit
Apr 26, 1976
527 F.2d 1110 (9th Cir. 1976)

In Davis, the suspect's right to silence rather than the right to counsel was at issue, and "the right to silence is not protected by a per se rule."

Summary of this case from Smith v. Endell

In Davis, we held that a defendant's confession was properly admitted into evidence where the defendant was initially asked only if he wanted to reconsider his decision to remain silent in light of photographic evidence clearly, implicating him in the crime.

Summary of this case from United States v. Lopez-Diaz

In United States v. Davis, 527 F.2d 1110 (CA9 1975), cert. denied 425 U.S. 953, 96 S.Ct. 1729, 48 L.Ed.2d 196 (1976), the defendant indicated he did not want to talk.

Summary of this case from United States v. Lopez-Diaz

In Davis a confession obtained almost immediately after a suspect had been advised of his rights and had indicated a desire to remain silent was held to be admissible.

Summary of this case from United States v. Pheaster

In Davis, after indicating his desire not to talk to the FBI agent, Davis was shown a bank surveillance photograph of himself participating in the robbery and was asked whether he wanted to reconsider his position.

Summary of this case from State v. Cody
Case details for

United States v. Davis

Case Details

Full title:UNITED STATES OF AMERICA, PLAINTIFF-APPELLEE, v. CHARLES EDWARD DAVIS…

Court:United States Court of Appeals, Ninth Circuit

Date published: Apr 26, 1976

Citations

527 F.2d 1110 (9th Cir. 1976)

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