                     United States Court of Appeals
                          FOR THE EIGHTH CIRCUIT
                                ___________

                                     No. 98-1183
                                     ___________

United States of America,                 *
                                          *
             Appellee,                    *
                                          *
      v.                                  * Appeal from the United States District
                                          * Court for the Southern District of Iowa.
Eddie Lee Turner,                         *
                                          *
             Appellant.                   *
                                     ___________

                              Submitted: May 12, 1998

                              Filed: September 21, 1998
                                     ___________

Before McMILLIAN, ROSS AND MORRIS SHEPPARD ARNOLD, Circuit Judges.
                           ___________


ROSS, Circuit Judge.


      Eddie Lee Turner appeals from a judgment of the district court1 entered upon a
jury verdict finding him guilty of possession with the intent to distribute crack cocaine



      1
        The Honorable Charles R. Wolle, Chief Judge, United States District Court
for the Southern District of Iowa.
and carrying a firearm during and in relation to a drug trafficking offense, in violation
of 21 U.S.C. § 841(a) and 18 U.S.C. § 924(c). We affirm.


      In the early morning hours of November 12, 1996, deputy sheriffs Steve Dolezal
and Chris Lagenberg saw Turner driving erratically. They pulled him off the road and
asked for his driver's license. Turner gave Dolezal a piece of paper on which was
written a false name and other information. Dolezal asked Turner if he had been
drinking or taking drugs. Turner denied drinking, but did not reply to the question
about drugs. Dolezal asked Turner to exit the car and go to the rear. Turner complied,
but was unsteady on his feet. Meanwhile, police officer Shane Kron searched the car
for weapons and saw an unfastened bag on the floor of the passenger side. Inside the
bag, Kron found an unloaded semi-automatic weapon, a loaded clip for the weapon,
and a container of crack cocaine.


      Deputy sheriff Joseph Lalla arrived at the scene to administer sobriety tests to
Turner. Based on the tests, Lalla believed that Turner was impaired by something other
than alcohol. Lalla arrested Turner, advised him of his Miranda rights,2 and placed him
in a patrol car. As Lalla was pulling away, Turner stated, "All right. I'll tell you my
real name" and gave Lalla his real name, date of birth and social security number.
When they arrived at the jail, officer Greg Humrichouse conducted tests to determine
if Turner was under the influence of drugs. During the testing, Turner was cooperative
and answered questions appropriately. A urine test showed that Turner had consumed
phencyclidine (PCP).


      2
       Miranda v. Arizona, 384 U.S. 436 (1966).

                                          -2-
      After the testing, detective David Henderson interviewed Turner. Henderson
again advised Turner of his Miranda rights, both orally and in writing. Turner signed
a waiver form, initialing each admonition. Turner then admitted that he had stolen the
crack cocaine and the gun in Kansas City, Missouri, and was going to sell them so he
could get money to buy Christmas presents for his daughter. He further stated that the
car belonged to a female friend, who later retrieved the car. During the interview,
Turner was cooperative.


      Following the interview, while in jail, Turner exhibited "bizarre" behavior. On
November 20, 1996, Dr. Remi Cadoret, a psychiatrist, examined Turner and diagnosed
a psychotic disorder and polysubstance abuse. In March and August 1997, Dr. Mark
Souza, another psychiatrist, examined Turner and diagnosed a PCP-induced psychotic
disorder.


      In July 1997, pursuant to a court-ordered sanity and competency evaluation, Dr.
Daniel Greenstein, a forensic psychologist, examined Turner. The doctor reviewed
Turner's arrest, jail, and medical records, administered intellectual and psychological
tests, and interviewed Turner. The doctor reported that Turner's I.Q. was in the low-
average to borderline range, his "verbal comprehension [wa]s stronger than his verbal
expressive abilities," and his profile was consistent with that of a malingerer. Although
the doctor believed that at the time of Turner's arrest his "functioning was impacted by
the influence of PCP," he noted that Turner was able to follow directions, respond
appropriately to questions, and was "goal-oriented" in that he stated his intention to sell
the crack cocaine and gun for money. Dr. Greenstein opined that at the time of his




                                           -3-
arrest Turner "had the ability to appreciate the nature of his actions" and was competent
to stand trial.


       Before trial, Turner filed a motion to suppress, asserting, among other things, that
his admission of his name to Lalla and his confession to Henderson violated his
Miranda rights. As to his confession, Turner argued that he did not have the mental
capacity to voluntarily and knowingly waive his rights. At a suppression hearing,
Turner presented several witnesses, including Dr. Souza, who testified that because of
a low I.Q. and PCP use, Turner "was incapable of forming an intelligent and knowing
waiver of his Miranda rights." Although the doctor diagnosed that Turner suffered
from a PCP-induced psychosis, the doctor admitted that at the time of Turner's arrest,
he might have only been intoxicated by PCP. On cross-examination, Dr. Souza
admitted that a person intoxicated by PCP might understand verbal and written
communication.


       The district court rejected Turner's arguments.3 As to the admission to Lalla, the
court found that it was spontaneous and not a result of interrogation. As to the
confession, after considering the evidence of Turner's mental status and finding
"[n]othing about the police questioning was improper or in any way coercive," the court
concluded that the waiver was valid, citing Colorado v. Connelly, 479 U.S. 157, 167
(1986).




       3
       Although the court refused to suppress Turner's admission of his name to
Lalla and confession to Henderson, it suppressed other statements.

                                           -4-
         On appeal Turner argues the district court erred in rejecting his claim that he
validly waived his Miranda rights before he confessed to Henderson. Although "[w]e
accept the district court's factual findings unless they are clearly erroneous[,] [w]e
review the ultimate determination that the accused knowingly and voluntarily waived
these rights de novo." United States v. Makes Room For Them, 49 F.3d 410, 414 (8th
Cir. 1995).


         In this case, the government responds that because Turner does not contest the
district court's finding of no police coercion, this court need not address Turner's
arguments concerning the validity of his waiver. We disagree. It is true, as the
government notes, that in Connelly, 479 U.S. at 167, the Supreme Court held "that
coercive police activity is a necessary predicate to the finding that a confession is not
'voluntary.'" However, later that term, in Colorado v. Spring, 479 U.S. 564 (1987), the
Supreme Court made clear that validity of a Miranda waiver has "'two distinct
dimensions'" -- whether the waiver is voluntary and whether it is knowing and
intelligent. Id. at 573 (quoting Moran v. Burbine, 475 U.S. 412, 421 (1986)).


         This court has recently described the "two distinct dimensions" of the inquiry
into the validity of a Miranda waiver. United States v. Jones, 23 F.3d 1307 (8th Cir.
1994).
               First, the relinquishment of the right must have been
               voluntary in the sense that it was the product of a free and
               deliberate choice rather than intimidation, coercion, or
               deception. Second, the waiver must have been made with
               a full awareness of both the nature of the right being
               abandoned and the consequences of the decision to abandon
               it.


                                           -5-
Id. at 1313 (quoting Moran, 475 U.S. at 421). "We read Connelly, therefore, as
holding only that police coercion is a necessary prerequisite to a determination that a
waiver was involuntary and not as bearing on the separate question whether the waiver
was knowing and intelligent." United States v. Bradshaw, 935 F.2d 295, 299 (D.C.
Cir. 1991); see also Derrick v. Peterson, 924 F.2d 813, 820 (9th Cir. 1990)
("[w]hatever doubt remained after Connelly concerning the distinct nature of the
knowing and intelligent prong of the waiver inquiry was removed by the Court's
decision in Colorado v. Spring"), cert. denied, 502 U.S. 853 (1991); Miller v. Dugger,
838 F.2d 1530, 1539 (11th Cir.) (Connelly did not "demonstrat[e] an intent by the
Supreme Court to eliminate this distinction between voluntariness and knowing
waivers"), cert. denied, 486 U.S. 1061 (1988).4


      We thus address, but reject, Turner's argument that his waiver was not knowing
and intelligent because he was impaired by a low I.Q., PCP intoxication, and mental
illness. As to his intelligence, although Turner's I.Q. was in the low-average to
borderline range, he was "clearly intelligent enough to understand his rights." Makes
Room, 49 F.3d at 414. Henderson testified that Turner was cooperative, reviewed and
initialed each admonition of the waiver form, agreed to answer questions, and gave




      4
       In Rice v. Cooper, 148 F.3d 747, 751 (7th Cir. 1998), the Seventh Circuit
acknowledged that "cases hold that a distinction must be made between an
unknowing waiver, invalid even if not the result of any police misconduct, and an
involuntary waiver, invalid only if it is the result of such misconduct." Although the
court believed the distinction was unsatisfactory, it did not pursue the matter further,
because in the case at bar there was no evidence of police coercion or that the
defendant, who was a mildly retarded 16 year-old, lacked the capacity to make a
knowing waiver of his Miranda rights. Id. at 752.

                                          -6-
accurate information, including the name and telephone number of the owner of the car.
See Henderson v. De Tella, 97 F.3d 942, 948 (7th Cir. 1996) (despite "below-average
I.Q. and limited reading abilities" defendant's conduct showed he "was able to
comprehend what his rights were and to waive them knowingly and voluntarily"), cert.
denied, 117 S. Ct. 1471 (1997). In addition, as the government notes, at the time he
was stopped, Turner acted in a manner more consistent with a person attempting to
avoid being caught than a person who did not know what he was doing. For example,
Turner denied consuming alcohol, but refused to answer questions about drugs and
gave a false name.


          As to PCP intoxication, we "decline[] to adopt a per se rule . . . when confronted
with intoxication." Makes Room, 49 F.3d at 415. Even if Turner was intoxicated by
PCP at the time of his confession, as just discussed, the evidence shows that he
understood his rights and knowingly waived them. Cf. United States v. Byrne, 83 F.3d
984, 989 (8th Cir. 1996) (despite evidence that defendant had taken drugs, behavior
showed waiver was voluntary). In addition, although Turner later exhibited "bizarre"
behavior and may have exhibited signs of mental illness, the change in behavior does
not show that at the time of his confession he lacked the mental capacity to waive his
rights.


    We also reject Turner's argument that the district court erred in holding that his
statement to Lalla was spontaneous and not a product of interrogation. While Turner
was in custody when he made the statement, "not all statements made while in custody
are products of interrogation." United States v. Hatten, 68 F.3d 257, 262 (8th Cir.
1995), cert. denied, 516 U.S. 1150 (1996). "'Interrogation' is 'express questioning,' or


                                              -7-
words or actions 'that the police should know are reasonably likely to elicit an
incriminating response . . ..'" Id. at 261 (quoting Rhode Island v. Innis, 446 U.S. 291,
301 (1980)). Thus, "[w]e have repeatedly held that '[a] voluntary statement made by
a suspect, not in response to interrogation, is not barred . . . and is admissible with or
without the giving of Miranda warnings.'" Id. at 262 (quoting Innis, 446 U.S. at 299).
Here, as the district court found, Turner's statement was "both voluntary and
volunteered, and not the product of police interrogation." Id. Lalla testified that as he
"had pulled out and started down the road . . . [Turner] told me, ‘All right. I'll tell you
my real name' just out of the blue." See United States v. Waloke, 962 F.2d 824, 829
(8th Cir. 1992) (defendant's statements during ride to police station were spontaneous
and not product of interrogation). In any event, even if we were to find error, any error
would be harmless.


      Turner next challenges the sufficiency of the evidence supporting his section
924(c) conviction for carrying a firearm during and in relation to a drug trafficking
offense. "'In reviewing the sufficiency of the evidence to support a guilty verdict, we
look at the evidence in the light most favorable to the verdict and accept as established
all reasonable inferences supporting the verdict.'" United States v. Davis, No. 97-1181,
1998 WL 484667, at *12 (8th Cir. Aug. 19, 1998) (quoting United States v. Plenty
Arrows, 946 F.2d 62, 64 (8th Cir. 1991)). "’The evidence need not exclude every
reasonable hypothesis except guilt.’" United States v. Baker, 98 F.3d 330, 338 (8th
Cir. 1996) (quoting United States v. Erdman, 953 F.2d 387, 389 (8th Cir.), cert denied,




                                           -8-
505 U.S. 1211 (1992)), cert. denied, 117 S. Ct. 1456 (1997).5 "'If the evidence
rationally supports two conflicting hypotheses, the reviewing court will not disturb the
conviction.'" Id. (quoting United States v. Burks, 934 F.2d 148, 151 (8th Cir. 1991)).


       In Muscarello v. United States, 118 S. Ct. 1911, 1919 (1998), the Supreme Court
held that the word "carry" in section 924(c) "includes the carrying of a firearm in a
vehicle." Thus, there is no "question that [Turner] carried the [firearm] within the
meaning of the statute." Davis, 1998 WL 484667, at *13. "However, it is not enough
that [Turner] carried a firearm; the firearm must be carried 'during and in relation to ‘a
drug trafficking crime." Id. (citing 18 U.S.C. § 924(c)(1)). "The Supreme Court
explained in Smith v. United States, 508 U.S. 223 (1993) that the phrase 'in relation to'
is expansive but that, at a minimum, 'the firearm must have some purpose or effect with
respect to the drug trafficking crime; its presence or involvement cannot be the result
of accident or coincidence.'" Id. at *14 (quoting Smith, 508 U.S. at 237-38). Here, the
firearm was found grip up with the crack cocaine in an unfastened bag within arm's
reach of Turner. Although Turner maintains that "his carrying the firearm was entirely
'incidental' to the crime[,]" a jury could reasonably "infer the gun served to facilitate the



       5
        Instead of following Baker, Turner asks this panel to follow United States v.
Davis, 103 F.3d 660, 667 (8th Cir. 1996) (internal quotation omitted), cert. denied,
117 S. Ct. 2424 (1997), in which this court stated that "where the government's
evidence is equally strong to infer innocence as to infer guilt, the verdict must be
one of not guilty." As Turner notes, Baker and Davis appear to be in conflict.
Although we may not overrule Davis, "[w]e are, however, free to choose which line
of cases to follow." Kostelec v. State Farm Fire & Cas. Co., 64 F.3d 1220, 1228 n.8
(8th Cir. 1995). We choose to follow Baker. See United States v. Saborit, 967 F.
Supp. 1136, 1140-41 (N.D. Iowa 1997) (questioning Davis's validity and noting in
past ten years this court has overwhelmingly followed Baker standard).

                                            -9-
[drug trafficking offense] by protecting not only [Turner], but also the drugs." United
States v. Williams, 104 F.3d 213, 215 (8th Cir. 1997). In addition, as the government
notes, the jury could have inferred that the sale of the crack cocaine would have been
facilitated if the firearm was part of the sale.


       Contrary to Turner's argument on appeal, the fact that the firearm was unloaded
"does not insulate [him] from the reach of section 924(c)(1)." United States v. Salazar,
66 F.3d 723, 728 (5th Cir. 1995) (internal quotation omitted); see also United States v.
Thomas, 964 F.2d 836, 838 (8th Cir.) (presence of unloaded gun and clip in car
permitted inference that "gun's availability facilitated the carrying out of the drug-
trafficking crime") (internal quotation omitted), cert. denied, 506 U.S. 893 (1992). In
this case, a loaded clip was found inside the bag containing the firearm and the evidence
was that the firearm could have been loaded and fired in a matter of seconds.6 In
addition, even if Turner intended to sell the gun, as he claimed, "facilitation of the [drug-
trafficking] crime need not be the defendant's sole purpose for possessing the weapon."
United States v. Castro-Lara, 970 F.2d 976, 983 (1st Cir. 1992), cert. denied, 508 U.S.
962 (1993). Because Turner's conviction is not against the weight of the evidence, we
also hold that the district court did not abuse its discretion in denying his motion for a
new trial.



       6
        We note that the Ninth Circuit, in holding that section 924(c) applies to
unloaded weapons, indicated that even an unloaded firearm could "have the same
effect on victims and observers when pointed or displayed, tending to intimidate,
and also increase the risk of violence by others who may respond to the perceived
danger represented by the (presumably) loaded gun." United States v. Hunter, 101
F.2d 82, 86 (9th Cir. 1996) (internal quotation omitted), cert. denied, 117 S. Ct.
1285 (1997).

                                           -10-
Accordingly, we affirm the judgment of the district court.


A true copy.


     Attest:


         CLERK, U. S. COURT OF APPEALS, EIGHTH CIRCUIT




                                  -11-
