Filed: Jul. 05, 2011
Latest Update: Feb. 22, 2020
Summary: FILED NOT FOR PUBLICATION JUL 05 2011 MOLLY C. DWYER, CLERK UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT UNITED STATES OF AMERICA, No. 10-10159 Plaintiff - Appellee, D.C. No. 3:09-cr-08018-GMS-1 v. MEMORANDUM* CALVIN BRYAN EVANSTON, Defendant - Appellant. Appeal from the United States District Court for the District of Arizona G. Murray Snow, District Judge, Presiding Argued and Submitted April 11, 2011 San Francisco, California Before: KOZINSKI, Chief Judge, HAWKIN
Summary: FILED NOT FOR PUBLICATION JUL 05 2011 MOLLY C. DWYER, CLERK UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT UNITED STATES OF AMERICA, No. 10-10159 Plaintiff - Appellee, D.C. No. 3:09-cr-08018-GMS-1 v. MEMORANDUM* CALVIN BRYAN EVANSTON, Defendant - Appellant. Appeal from the United States District Court for the District of Arizona G. Murray Snow, District Judge, Presiding Argued and Submitted April 11, 2011 San Francisco, California Before: KOZINSKI, Chief Judge, HAWKINS..
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FILED
NOT FOR PUBLICATION JUL 05 2011
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 10-10159
Plaintiff - Appellee, D.C. No. 3:09-cr-08018-GMS-1
v.
MEMORANDUM*
CALVIN BRYAN EVANSTON,
Defendant - Appellant.
Appeal from the United States District Court
for the District of Arizona
G. Murray Snow, District Judge, Presiding
Argued and Submitted April 11, 2011
San Francisco, California
Before: KOZINSKI, Chief Judge, HAWKINS and GOULD, Circuit Judges.
Calvin Bryan Evanston (“Evanston”) appeals his conviction for assault resulting
in serious bodily injury. He alleges error in the admission of various statements
because they were involuntary on the basis of intoxication and coercion, and because
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
he did not knowingly and intelligently waive his Miranda rights on those occasions
in which he was Mirandized. We affirm the admission of these statements.
Un-Mirandized August 11 and August 15 Statements
The voluntariness of a statement is determined under the totality of the
circumstances. Schneckloth v. Bustamonte,
412 U.S. 218, 226 (1973). Intoxication
does not preclude voluntariness unless it reaches the level of incapacitation that
overcomes the defendant’s free will. See Medeiros v. Shimoda,
889 F.2d 819, 823
(9th Cir. 1989). Evanston’s intoxication when he made these statements did not reach
this level. Furthermore, police coercion is required in order to render a confession
involuntary, Colorado v. Connelly,
479 U.S. 157, 167 (1986), but Evanston’s
outbursts and unsolicited statements on these dates cannot fairly be characterized as
confessions. Even if they were construed as such, there is no evidence of police
coercion that could have rendered the statements involuntary, so suppression is not
appropriate. See
id.
Mirandized August 21, September 18, and October 6 Statements
Evanston was informed of his Miranda rights on multiple occasions through the
use of federal Advice of Rights forms. He signed each form and initialed next to each
right, indicating both that he understood his rights and that he wished to waive them.
He at no point asked for an attorney, complained of confusion about his rights, or
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asked to stop the interviews. There was no police coercion. Under the totality of the
circumstances, the district court properly found that Evanston knowingly and
intelligently waived his Miranda rights on each occasion. See United States v. Crews,
502 F.3d 1130, 1140 (9th Cir. 2007). Further, any failure of the interviewing officers
to inform Evanston about the difference between tribal rights and Miranda rights did
not preclude a knowing and intelligent waiver because there was no indication—at the
time of questioning, at trial, or on appeal—that Evanston actually did not or could not
understand his federal rights. See United States v. Doe,
819 F.2d 206, 209 (9th Cir.
1985).
ADMISSION OF EVIDENCE AFFIRMED.1
1
Evanston also appealed the district court’s decision to allow supplemental
closing arguments to break jury deadlock. In a separate published opinion, we vacate
Evanston’s conviction and remand for a new trial on the basis that the use of
supplemental closing arguments was an abuse of the trial judge’s discretion to manage
jury deliberations.
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