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U.S. v. Gilmore

United States District Court, D. Kansas
Jan 11, 2002
Case No. 01-40106-01-JAR (D. Kan. Jan. 11, 2002)

Opinion

Case No. 01-40106-01-JAR.

January 11, 2002


MEMORANDUM AND ORDER


An indictment charges that the defendant, with malice aforethought, did unlawfully and wilfully kill Quendarius Demarcus Eirby, a two-year-old child, by beating him to death. On January 9, 2002, the Court heard testimony and arguments regarding several pretrial motions, including a motion to determine voluntariness of confession. The Court ruled upon the motions and this order is issued to record the Court's rulings.

1. MOTION TO DETERMINE VOLUNTARINESS OF CONFESSION (Doc. No. 23).

The evidence in this case established the following facts. On October 18, 2001, Special Agent Michael Harrigan with the Federal Bureau of Investigation ("FBI"), received a report from the United States Army Criminal Investigation Division ("CID"), Fort Riley, Kansas, regarding a suspicious death that occurred earlier that day on the military reservation. The defendant, whose wife is a private in the Army, reported to the Military Police that his two-year-old stepson was unresponsive after falling down the stairs in their residence. The defendant indicated that he had been sleeping in the living room when he was awakened by a loud thump at approximately 8:50 a.m. He then saw the child lying face down at the bottom of the stairs. After unsuccessfully attempting to revive him, the defendant took the child to the base hospital where he was pronounced dead.

The defendant was transported by the Military Police to the CID office, where he was placed in a public waiting room. Special Agent John Lemke of the CID testified that the defendant was transported by the police because he did not have access to a vehicle. The defendant was not restrained and was wearing street clothes. Special Agent Harrigan arrived at the CID office between 2:30 p.m. and 3:30 p.m. and was briefed by Special Agent Lemke.

At approximately 5:00 p.m., Special Agent Harrigan proceeded to interview the defendant in an interview room. Special Agent Harrigan described the room as spartan, with a table, chairs, a window and a one-way mirror glass. Special Agent Lemke was also present. Special Agent Harrigan advised the defendant of his Miranda rights and the defendant signed a waiver form indicating that he understood his rights and was willing to answer questions without a lawyer present.

The defendant initially told Special Agent Harrigan that his stepson fell down the stairs. As the interview progressed, the defendant's story changed. The defendant stated that he had been asleep in the living room when his stepson woke him up at approximately 8:50 a.m. The defendant stated he was under stress due to marital problems with the child's mother and took them out on the child by kicking him in the chest. The defendant stated that he then picked the child up and shook him and dropped him to the floor several times. When the child did not respond, the defendant took him upstairs to a bathroom and tried to revive him with water. When this failed, he called for emergency help. Special Agent Harrigan prepared a written statement setting forth these facts as dictated by the defendant, which the defendant signed. The interview was concluded at 7:57 p.m.

During the interview, the defendant was wearing street clothes and was not restrained. The defendant did not ask for an attorney, nor that questioning be stopped. The Special Agents gave the defendant two 25 minute breaks during the three-hour long interview. The defendant became tearful when recounting how he had kicked his stepson in the chest, but did not lose his composure and was able to continue with the interview. The Special Agents did not raise their voices during the interview.

Voluntariness is the key test for admitting or refusing to admit a confession. U.S. v. Glover, 104 F.3d 1570 (quoting United States v. Shoemaker, 542 F.2d 561, 563 (10th Cir.) cert. denied, 429 U.S. 1004 (1976). A determination of voluntariness of a defendant's statement is made after examining several factors including: 1) the defendant's age, education and intelligence; 2) the length of the detention and interrogation; 3) the length and nature of the questioning; 4) whether the defendant was advised of his constitutional rights; and 5) whether the defendant was subjected to or threatened with any physical punishment. U.S. v. Lugo, 170 F.3d 996, 1004 (10th Cir. 1999). A confession is only involuntary when "the police use coercive activity to undermine the suspect's ability to exercise his free will." Id. (quoting United States v. Erving L., 147 F.3d 1240, 1249 (10th Cir. 1998).

In this case it appears that the defendant is a mature, educated man of at least average intelligence. He was questioned for no more than three hours in a non-hostile manner, without restraint and in a comfortable setting. The defendant appeared calm and well able to express himself clearly. He was advised of his constitutional right to silence prior to being questioned and he waived that right. He was not threatened physically, nor was any mental coercion applied. Given all the circumstances, the Court is convinced that the defendant's free will was not subverted by the Special Agents and that his confession was voluntary.

2. MOTION FOR DISCLOSURE OF RULE 16(A)(1)(E) EVIDENCE AND DEMAND FOR EVIDENCE UNDER RULE 404(B) (Doc. Nos. 21 and 22).

These motions were granted as the prosecution agreed to disclose this information within fourteen (14) days prior to trial.

IT IS THEREFORE ORDERED that the defendant's confession dated October 18, 2001, was voluntary.

IT IS FURTHER ORDERED that the defendant's motion for disclosure of Rule 16(A)(10(E) evidence and demand for evidence under Rule 404(B) are granted. The government shall disclose the requested information at least fourteen (14) days prior to trial.

IT IS SO ORDERED.


Summaries of

U.S. v. Gilmore

United States District Court, D. Kansas
Jan 11, 2002
Case No. 01-40106-01-JAR (D. Kan. Jan. 11, 2002)
Case details for

U.S. v. Gilmore

Case Details

Full title:UNITED STATES OF AMERICA, Plaintiff, v. DWAYNE ALLEN GILMORE, Defendant

Court:United States District Court, D. Kansas

Date published: Jan 11, 2002

Citations

Case No. 01-40106-01-JAR (D. Kan. Jan. 11, 2002)