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UNITED STATES v. CHOICE

April 25, 1975

UNITED STATES OF AMERICA
v.
MACKEY RAYMOND CHOICE et al.


Fogel, J.


The opinion of the court was delivered by: FOGEL

FOGEL, J.

 Mackey Raymond Choice was indicted for bank robbery, conspiracy and unlawfully carrying a firearm during the commission of a felony, as a result of an incident which occurred at the Provident National Bank branch located at 3901 Conshohocken Avenue, Philadelphia, on October 16, 1974. Choice filed several pretrial motions, including a motion to suppress statements which were averred to have been made to agents of the Federal Bureau of Investigation (The Bureau). On January 20, 1975, we held evidentiary hearings on these motions, and on similar motions filed by Harry Glover, a co-defendant. On February 4, 1975, we denied each of the motions, and delivered oral findings of fact and conclusions of law in open court. The findings of fact and conclusions of law with respect to Choice's suppression motion can be found at pages 15-23 of the Notes of Testimony.

 Choice was thereafter tried before a jury and was found guilty on February 26, 1975, on those counts charging him with bank robbery and conspiracy, a judgment of acquittal having been entered by us prior to submission of the matter to the jury on the count relating to the unlawful carrying of a firearm.

 Imposition of sentence has been scheduled. At this juncture, however, we will further discuss the reasons for our ruling denying Choice's motion to suppress certain evidence which was subsequently admitted during the course of the trial. *fn1"

 Our previous findings of fact may be summarized as follows: On October 16, 1974, Choice was treated for gunshot wounds at the emergency room of Osteopathic Hospital in Philadelphia. According to the stipulation of the parties: *fn2"

 
* * * As soon as Mr. Choice was admitted into the emergency room of Osteopathic Hospital, an intravenous solution procedure was started. A tube was placed in Mr. Choice's vein at the crook of the right arm, near the bend in the elbow. A 1000 c.c. lactated ringer solution was administered. This is a mixture of water and sodium and is used to expand the blood volume to prohibit shock. This procedure began at approximately 1:00 when Mr. Choice was first admitted.
 
A Foley [catheter] was inserted into Mr. Choice's penis. A Foley [catheter] is a soft, latex tube with a balloon-type mechanism on the end. Once inserted into the penis, the balloon is blown up. The [catheter] monitors the rate of urinary flow which tells whether or not an individual is going into shock. It is also used to see if there is blood in the urine which would be an indication of internal damage, or damage to the liver.
 
A physical examination was then conducted. It was determined that there was a gunshot wound behind the right thigh and there was another gunshot wound near the right foot on the right side. Mr. Choice's pulses were good and there was no neurologic loss. There was a hematoma on the right thigh which is a bruise and discoloration. Mr. Choice seemed alert and in stable condition. There were numerous uniformed police officers present as well as several detectives from the Philadelphia Police. In addition, many students from the hospital were in the emergency room as well as two police doctors. * * *
 
A blood sample of Mr. Choice was taken and received in the laboratory on October 16, 1974, at approximately 1:43 P.M. Blood tests indicate that there was nothing unusual about Mr. Choice's blood content. However, a routine urinalysis indicated that there was an abnormal amount of protein in the urine as indicated by a [albumin] test. Moreover, there were traces of acetone in the urine as well as traces of bilirubin. Moreover, there were traces of uroliduogen. This indicates there was an abnormal urinalysis and there was probably something wrong with Mr. Choice's liver which could have left him in pain.
 
Mr. Choice was later x-rayed and it was found that there was a fracture of the left inferior pelvicrami, which is the bridge of bone in front of the penis. There was a commuted fracture of the right anterior and post-anterior thigh. There were metallic bullets within the range of the left buttock, the right mid-thigh, and the right distal leg.

 Dr. James Harris treated Choice at Osteopathic Hospital. While Dr. Harris thinks that Choice may have requested an attorney at that time, he admits that he is only "about fifteen percent certain" that Choice did request an attorney, and further admits that he was busily engaged in the emergency room on that day and would not now recognize Choice if he saw him. *fn3"

 Before Choice left Osteopathic Hospital, bandages were applied to his wound and a splint to his right leg. He was taken from Osteopathic Hospital to the Emergency Room of Philadelphia General Hospital (PGH), where he received the following treatment. Again, we quote the stipulation of the parties: *fn4"

 
* * * Mr. Choice had sustained a gunshot wound to the right thigh and right ankle and there was a bullet tracted on the right thigh to the right femoral head but no fracture. There was another bullet tracted through to the left ramus of the pubis and a compound fracture of the left gluteal area laterally. The right ankle was shattered and there was a fracture of the tibia. There was a gross hematoma of the right leg and there was a Foley [catheter] in the patient's penis. His right leg was also in a splint. There was a massive swelling of the right thigh as a result of the wound. During the emergency examination, and while preliminary diagnosis was being obtained, Dr. O'Yek [the treating physician] observed that the patient, Mr. Choice, was in moderate pain as indicated by his visual observations of the patient's reactions to movement and to the treatment. The intravenous solution that had been applied at Osteopathic Hospital was maintained and Mr. Choice's temperature was found to be 101 degrees. The exterior of the wounds were treated in the emergency ward and Mr. Choice was given several forms of antibiotics. * * *

 On the afternoon of October 16, 1974, Special Agent Robert Legg of The Bureau went to the emergency room at PGH for the purpose of interviewing Choice as a suspect in the bank robbery which had occurred earlier that day at the Provident National Bank. Agent Legg went up to Choice, identified himself as a special agent, and asked Choice if he would like to make a statement. Prior to doing so, he had not personally discussed Choice's condition with the medical staff at PGH. At this confrontation, Choice did not explicitly refuse to make a statement, but merely remained silent, and did not acknowledge the presence of Agent Legg at all. Agent Legg did not advise Choice of his rights at that time due to defendant's absolute silence throughout the encounter. (N.T. 8-16, January 20, 1975).

 Thereafter, Choice was transferred from the emergency room to the Intensive Care Unit of the Surgical Division of PGH, where an arteriogram was performed.

 
* * * An arteriogram is a test whereby a large needle filled with dye is inserted into one of the patient's major arteries. A dye-type solution is injected and an x-ray is then taken of the patient to see if any bullet passed through any artery. Normally, this test causes heat to the patient. This heat sensation can be painful as there is a definite burning sensation. The arteriogram was done at approximately 6:00 in the evening.
 
* * *
 
Dr. A. Saragovi, M.D., * * * administered the arteriogram that is mentioned above to Mr. Choice. The procedure for this examination was to place Mr. Choice under local Xylocaine anesthesia in the right groin, and then place an 18 gauge Seldinger needle in the common femoral artery using the Seldinger technique and a guide wire followed by a polyethylene catheter advanced to the lower abdominal aorta. This procedure was done in the x-ray department and it was concluded that there was no evidence of arterial injuries or bleeding. However, there is a suggestion of minimal spasm at the take-off of the left profunda femoral artery. *fn5"

 The arteriogram established that there was no indication of arterial damage, and Choice was removed from the surgical ward to the orthopedic ward of PGH, where a cast was placed on his lower right leg.

 The x-rays taken at the time of Choice's admission to PGH revealed a bullet lodged in the region of the gluteal muscle between the anterior-inferior iliac spine in the greater trochanter. The soft tissue density in this area implied a hematoma. There was a missile tract leading medially, which also contained bone fragments. Further, there was a cortical fracture of the inferior pubic ramus.

 Shortly after Choice's admission, the drug keflin, an antibiotic, and a tetanus toxoid shot were administered.

 The parties also have stipulated that by midnight of October 16, 1974, "all emergency care and diagnostic treatment were complete and Mr. Choice was resting in the Orthopedic Ward surrounded by a police escort." *fn6"

 At approximately 1:00 P.M. on October 17, 1974, Officer Ennis Mitchell of the Homicide Division, Philadelphia Police Department, went to PGH for the purpose of interviewing Choice in connection with the robbery at the Provident National Bank the previous day. Prior to interviewing Choice, Mitchell did not personally inquire about Choice's condition from physicians on the hospital staff, but he did ask a nurse whether Choice was awake and whether he could talk, and received affirmative answers to both questions. Choice was in a ward on the fourth floor of Building #17 at PGH, guarded by two police officers. One of his arms was in a sling, and there may have been an intravenous device, but there were not tubes in his nose or mouth. When Mitchell approached the bed, Choice's eyes were open and he appeared to be awake. Mitchell immediately informed Choice that he wished to question him concerning the robbery of the Provident National Bank, and advised him of his rights according to a standard Philadelphia Police form:

 
"We are questioning you concerning the hold up of Provident Bank at 3901 Conshohocken Avenue on 10/16/74 at approximately 12:50 p.m.
 
"You have a right to remain silent and do not have to say anything at all.
 
"Anything you say can and will be used against you in court.
 
"You have a right to talk to a lawyer of your own choice before we ask you any questions; also to have a lawyer here with you while we ask questions.
 
"If you are willing to give us a statement you have a right to stop any time you wish.
 
"Do you understand that you have a right to keep quiet and do not have to say anything at all?"
 
And his response was "Yes."
 
"Do you understand that anything you say can and will be used against you?"
 
Again his response was "Yes."
 
"Do you want to remain silent?"
 
"No."
 
"Do you understand that you have a right to talk with a lawyer before we ask ...

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