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M-2329 v. Zimmerman

argued: October 1, 1986.

GEORGE JONES M-2329, APPELLANT
v.
CHARLES ZIMMERMAN, APPELLEE



Appeal from the United States District Court for the Western District of Pennsylvania, D.C. Civil No. 85-1812.

Author: Weis

Before: WEIS, MANSMANN, and HUNTER, Circuit Judges

Opinion OF THE COURT

WEIS, Circuit Judge

In this habeas corpus case, petitioner alleges that the state trial court was required to rule specifically on the voluntariness of an inculpatory statement even though he denied making it. He also alleges a deprivation of the right to counsel of his choice because the prosecution demanded that the lawyer represent either petitioner or a codefendant. We conclude that by denying suppression of the statement the state judge implicitly ruled it was voluntary, and similarly that failure to submit the issue to the jury was not constitutionally erroneous. We also find no violation of petitioner's right to counsel and will affirm the order of the district court denying the writ.

After a jury trial in the state court, petitioner Jones was convicted on several counts of robbery and other charges arising out of events that occurred in Pittsburgh, Pennsylvania, during the noon hour on January 6, 1977. The jury had ample evidence to find the following, almost uncontradicted, set of facts.

The petitioner and two companions, all armed with hand guns, appeared at an insurance company's office. Petitioner and one of his companions wore wigs and white pancake makeup. The three men robbed the company of $3,030, and four employees of lesser sums.

Harvey Meieran, an occupant of an adjacent office, heard the disturbance and called the police. Seeing the three men leave the building, Meieran decided to follow them. He asked the driver of an approaching postal truck to block the getaway car. When the postal driver attempted to do so, the robbers fired several shots. One bullet lodged in the mail truck.

As the gunmen got into their auto, detectives in an unmarked police car pulled in front of it, and one of the robbers opened fire. All three then left their car, running down an embankment to the railroad tracks behind the insurance company building. Continuing along the tracks for a short distance, they climbed to adjoining Amberson Avenue, only a few hundred yards from the insurance office. Petitioner, still wearing a red wig and carrying a pistol, confronted Chris LaFollette, who was leaving his van to go into a nearby building. Jones commandeered the van and began to drive away with his two accomplices.

A police cruiser arrived and against shots were fired, this time police Sergeant Brown was wounded. As the robbers attempted to escape, they backed into a pole, damaging the van. More police officers converged on the scene, and the gunmen surrendered.

These events occurred within a few minutes; witness Meieran saw the entire incident, except for several seconds, from the time the robbers left the insurance company office.

When Jones was taken into custody he had white pancake makeup on his face. A red wig was found on the ground behind the wrecked van. As police led defendant to the patrol wagon, some money he had stuffed in his pockets during the robbery fell to the ground.

Shortly after the gunmen surrendered, Officer Stegena arrived and spoke to the wounded policeman. Stegena then assisted the other officers in searching Jones and started to pick up the money on the ground near defendant. Stegena testified: "somebody asked me how the police officer was, and I said, 'he got a hole about as big as half a dollar.' . . . [Jones] said, 'I didn't mean to do it.' And he put his head down like in disgust." Stegena left the area in his police car. He did not accompany Jones in the patrol wagon.

The factual controversy here is what occurred while Jones was transported in the patrol wagon to the Public Safety Building in Pittsburgh. The police estimated that the trip took about ten minutes, and Jones' approximation was twenty minutes.

Three policemen rode with Jones in the back of the patrol wagon. The officers testified that at some point during the trip, Jones asked, "How is the policeman that got shot?" One of the officers advised Jones of his Miranda rights, and after Jones said he understood, the officer commented, "What the hell do you care?" According to the officer, Jones responded, "Because I'm the one that shot him. I don't want to see him die."

As part of the pre-trial procedures, Jones moved to suppress the officers' testimony about the inculpatory statement made in the patrol wagon. Jones denied making that statement during the trip, and testified the police beat and tortured him on the way to the Public Safety Building in an effort to have him confess to other unrelated crimes. After listening to extensive testimony, the hearing judge denied the motion to suppress.

During the trial, substantially the same testimony was produced. Jones had elected to act as his own counsel, although a lawyer from the Public Defender's office actively assisted him. In his closing argument, Jones began to discuss the incident in the patrol wagon. The district judge sustained an objection by the prosecutor and limited Jones' argument to credibility, disallowing references to coercion.

The jury found defendant guilty on three counts of robbery, two counts of recklessly endangering another person, one count of theft of movable property, one count of criminal conspiracy, and one count of aggravated assault, the last being the charge arising out of the shooting of Sergeant Brown. The trial judge imposed consecutive terms of ten to twenty years on each of the three robbery counts for a total of thirty to sixty years. The sentences imposed on the remaining counts, including aggravated assault, were concurrent with the robbery terms.*fn1

After direct appeals proved unsuccessful, Jones filed a state Post-Conviction Hearing Act petition. There he presented, among other issues, allegations that the suppression court had erred in declining to rule on the voluntariness of the patrol wagon statement, and that the trial court had erred in refusing to allow argument to the jury on the point. The Pennsylvania Supreme Court ultimately rejected Jones' position, concluding that because he had denied making the challenged statements, he could not raise an issue of voluntariness. Commonwealth of Pennsylvania v. Jones, 507 Pa. 580, 493 A.2d 662 (1985).*fn2 Jones then brought a federal habeas corpus action, which the district court denied.

Petitioner now appeals to this court, raising the admissibility of the statement as well as a claim that he was denied the opportunity to be ...


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