                                                                       F I L E D
                                                                United States Court of Appeals
                                                                        Tenth Circuit
                      UNITED STATES CO URT O F APPEALS
                                                                    December 12, 2006
                                   TENTH CIRCUIT                    Elisabeth A. Shumaker
                                                                        Clerk of Court



 U N ITED STA TES O F A M ER ICA,

          Plaintiff-Appellee,
                                                         No. 05-6089
 v.                                                   (W .D. Oklahoma)
                                                    (D.C. No. 04-CR-97-L)
 G REG O RY CA RL M IN A RD ,

          Defendant-Appellant.




                                OR D ER AND JUDGM ENT *


Before L UC ER O, M cKA Y, and M U RPH Y, Circuit Judges.




I.    Introduction

      Following indictment on drug and firearm charges, Gregory Carl M inard

moved to suppress inculpatory statements he made to police. The district court

held an evidentiary hearing as required by Jackson v. Denno, 378 U.S. 368

(1964), to determine whether M inard’s statements were made voluntarily. After

considering evidence presented by both the Government and M inard, the court


      *
       This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata and collateral estoppel. It may be cited,
however, for its persuasive value consistent with Fed. R. App. P. 32.1 (eff. Dec.
1, 2006) and 10th Cir. R. 32.1 (eff. Jan. 1, 2007).
determined the Government carried its burden of showing, in each instance, the

knowing and voluntary nature of M inard’s Fifth Amendment waiver and

incriminating statements. The court denied M inard’s suppression motion and

ruled the statements admissible at trial.

      M inard subsequently pleaded guilty to one count of knowingly

manufacturing methamphetamine under 18 U.S.C. § 841(a)(1) and one count of

being a felon in possession of firearms under 18 U.S.C. § 922(g)(1). 1 The court

sentenced M inard to concurrent prison terms of 240 months on the

methamphetamine charge and 120 months on the firearms charge. In his plea

agreement, M inard retained the right to appeal the district court’s denial of his

suppression motion. Exercising jurisdiction pursuant to 28 U.S.C. § 1291, this

court affirms the district court’s decision.

II.   Background

      M inard was shot in the chest by co-defendant Christopher Spindler on

M arch 27, 2004, following an early morning argument and gun fight at M inard’s

home in Oklahoma City. M inard was taken to Oklahoma U niversity M edical

Center. During his hospital stay, M inard was under arrest on state charges for




      1
       In exchange for his guilty plea, prosecutors moved to dismiss count 1 of
the indictment. Count 1 accused M inard and three others of conspiracy to
manufacture, possess with intent to distribute, and distribute 500 grams or more
of methamphetamine in violation of 18 U.S.C. § 841(a)(1).

                                            -2-
manufacturing methamphetamine. M inard did not have surgery to remove the

bullet, but his condition improved during his hospitalization.

      A police search of M inard’s house immediately after the shooting revealed

chemicals and tools used in methamphetamine manufacturing. A .22 caliber

pistol belonging to M inard was subsequently recovered inside the house; the .357

caliber revolver M inard used in the shootout w as recovered from a co-defendant.

The police investigation revealed M inard routinely sold methamphetamine to

Spindler and others. M inard ultimately admitted, for sentencing purposes, to

manufacturing one kilogram of methamphetamine.

      W hile in the hospital in the days after the shooting, M inard was

interviewed twice by police detectives, once on M arch 30 and again on April 2.

In each interview , an Oklahoma City police detective advised M inard of his

M iranda rights and, in response, M inard waived his rights and agreed to speak

with the officers. In the course of these interview s, M inard admitted to

manufacturing methamphetamine in his home as well as to owning two guns.

M inard was interview ed again a month later, on April 29, at the Oklahoma City

jail. In this third interview, after again w aiving his M iranda rights, he provided

additional details about his role in manufacturing and selling methamphetamine

and about the shooting incident. None of these conversations was recorded or

transcribed. M inard does not, however, contest the substance of the conversations




                                         -3-
Detectives Park and Chute recounted to the court. M inard only claims the

waivers and statements he gave were unknowing and involuntary.

       At the hearing on M inard’s motion to suppress, the district court heard

testimony from Nurse Heather Ross, the nurse on duty during the first of the

interviews, to establish M inard’s medical condition at the time of that first

interview. The court also received into evidence M inard’s hospital records

(G overnment Exhibits 3–5) and the waiver forms he signed (Government Exhibits

1 and 2). Detective Kenneth Park testified about M inard’s demeanor and the

substance of his statements during the hospital interviews. Attempting to counter

Park’s testimony, M inard’s mother, Barbara Lynch, testified about M inard’s

confused mental state and dire physical condition during her visits to the hospital.

Detective A llen Chute testified about the nature and substance of the jailhouse

interview .

       Considering the evidence before it, the district court determined “the

government has carried its burden of showing by the preponderance of the

evidence that M inard’s waiver of rights and subsequent confessions were

knowingly and voluntarily made.” The court denied M inard’s motion to suppress.

The court found no evidence of police coercion at either the hospital or the jail,

and, despite M inard’s injury and receipt of pain m edication, rejected M inard’s

argument that pain or painkillers affected M inard’s free will.




                                          -4-
       On appeal, M inard claims the district court incorrectly concluded his

statements were voluntary and, therefore, erroneously failed to suppress the

statements. This court concludes M inard’s assertions on appeal are unavailing.

III.   Discussion

       M inard challenges both the validity of his M iranda waiver and the

voluntariness of the statements he gave after providing a waiver. A M iranda

waiver, to be valid, must be given voluntarily, knowingly, and intelligently.

M iranda v. Arizona, 384 U.S. 436, 444 (1966). An inculpatory statement, to be

admissible, must be made voluntarily and of the defendant’s free will. Colorado

v. Connelly, 479 U.S. 157, 167 (1986).

       Involuntariness in the context of both M iranda waivers and confessions

requires a finding of coercive police action. Id. (“[C]oercive police activity is a

necessary predicate to the finding that a confession is not ‘voluntary’ within the

meaning of the Due Process Clause.”); M oran v. Burbine, 475 U.S. 412, 421

(1986) (“[T]he relinquishment of the [M iranda] 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.”). Thus, in the absence of police coercion, a

court cannot conclude a defendant’s waiver or inculpatory statements are

involuntary.

       A valid waiver, however, requires more than just a finding of voluntariness.

In addition to being voluntary, a waiver of M iranda rights must also be knowing

                                         -5-
and intelligent. 384 U.S. at 444. In contrast to a voluntariness analysis, a court

need not find coercion in order to find a defendant’s waiver unknowing or

unintelligent. See United States v. Cristobal, 293 F.3d 134, 142 (4th Cir. 2002).

Instead, the totality of the circumstances must demonstrate a defendant waived his

rights with a “requisite level of comprehension.” M oran, 475 U.S. at 421. A

waiver is knowing and intelligent only if it was made with “a full awareness of

both the nature of the right being abandoned and the consequences of the decision

to abandon it.” Id. A defendant need not, however, understand all the

consequences of the waiver. See Colorado v. Spring, 479 U.S. 564, 574 (1987).

He need only understand his right to remain silent or have his statements used

against him. Id.

      W hen a defendant challenges the validity of a M iranda waiver or the

voluntariness of his inculpatory statements, this court independently reviews the

entire record and decides de novo whether the defendant’s actions and words w ere

voluntary. United States v. Hernandez, 93 F.3d 1493, 1501 (10th Cir. 1996).

This court accepts the district court’s findings of fact, however, unless the

findings are clearly erroneous. Id. Examples of factual findings in the

voluntariness context include the district court’s determinations about police

intimidation of a suspect or the suspect’s susceptibility to police coercion. United

States v. Chalan, 812 F.2d 1302, 1308 (10th Cir. 1987). W ith these standards in




                                         -6-
mind, we consider separately each of M inard’s three interviews with law

enforcement.

A.    M arch 30 ICU Interview

      M inard argues he was under the influence of painkillers and in great pain

during the M arch 30 hospital interview . Although he listened to D etective Park

read the waiver of rights form, read the form himself, and signed the form, he

contends he was confused and did not understand the nature of the legal rights he

was w aiving. M inard, therefore, argues his statements w ere involuntary and his

waiver was invalid.

      Unless clearly erroneous, this court must accept the district court’s factual

findings. Based on a transcript of the district court’s evidentiary hearing and the

exhibits received by the district court, we conclude the district court properly

found an absence of evidence of police coercion and properly determined

M inard’s waiver and inculpatory statements were voluntarily made.

      Park interviewed M inard in the surgical trauma ICU just after 1:00 p.m. on

M arch 30, 2004, three and a half days after M inard was admitted to the hospital.

Park asked N urse Ross for permission to interview M inard. Park also asked Ross

whether M inard was under the influence of mind-altering drugs or painkillers and

whether he would be able to answer Park’s questions. Although she did not check

M inard’s chart before answering Park’s questions, Ross indicated M inard was not

under the influence of drugs and w ould be able to respond to Park’s inquiries.

                                         -7-
      Once inside M inard’s room, Park roused M inard from sleep and allowed

M inard time to drink a sip of water and orient himself. Park said he read M inard

a standard waiver of rights form word for word, made sure M inard could read

English, and allowed M inard the thirty seconds to a minute he needed to read the

form over for himself. Park estimated he was seated in a chair about a foot and a

half to two feet from the side of M inard’s bed during this time. M inard signed

the document while lying down in bed. M inard also verbally stated his

willingness to talk to Park. The entire interview lasted twenty minutes.

      Hospitalization and pain alone are not enough to create any sort of

presumption of coercion or involuntariness. See United States v. M orris, 287

F.3d 985, 989 (10th Cir. 2002) (rejecting gunshot victim’s claim of FBI coercion

where FBI took care in determining whether victim’s m edical condition would

impair his ability to answ er questions); United States v. Hack, 782 F.2d 862, 866

(10th Cir. 1986) (concluding statements made two days after gunshot wound to

defendant’s mouth while defendant was still in pain were voluntary). Despite

M inard’s attempt to equate his situation with that in M incey v. Arizona, 437 U.S.

385, 389–402 (1978), his situation is easily distinguishable from M incey:

M inard’s interrogation took place three days after being shot; M inard signed a

waiver and indicated great willingness to speak with Detective Park; M inard did

not complain of pain to Park; M inard had a chest tube and IV inserted at the time

of the interview but was not otherwise encumbered by medical apparatus; M inard

                                         -8-
had not received painkillers or other mind-altering drugs in the eighteen hours

prior to the interview; M inard did not indicate confusion about any subject on

which Park questioned him. There are no indicia of police coercion in this

encounter. Therefore, M inard’s w aiver could not have been involuntary even if

his decision to talk were influenced by pain medication or pain level. See

Connelly, 479 U.S. at 167.

      Additionally, this court concludes, based on facts found by the district

court, that M inard’s mental state, pain medication level, and pain intensity level

did not negate his ability to knowingly or intelligently waive his rights. The

evidence presented to the district court shows that M inard, a thirty-seven year old

man with an eleventh grade education and several prior felony convictions, had

no difficulty understanding the waiver and its implications.

      Regarding M inard’s mental state, Nurse Ross testified about the

neurological assessment used to rate a patient’s verbal, motor, and neurological

responses. On M arch 30 Ross rated M inard’s verbal response as five or

“oriented” at 7:00 a.m. and again at 3:00 p.m., but rated M inard a four or

“confused” at 11:00 a.m., two hours before Detective Park’s visit. M inard’s

records also showed he had been rated a five or “oriented” at each other four hour

interval on M arch 29 and 30 before and after the 11:00 a.m. “confused” rating. 2



      2
       Nurse Ross explained that “confused” means the patient is oriented to at
least person, place, or time, but not all three; it can also mean the patient is

                                         -9-
      In addition to medical testimony from Nurse Ross, Detective Park testified

about M inard’s mental acuity and condition on M arch 30 by describing the

substance of their conversation. Park estimated he had interviewed close to a

thousand people during his career as a police officer and, based on his experience,

M inard showed no signs of difficulty understanding Park’s questions. In

particular, Park said M inard was able to discuss manufacturing methamphetamine

using the red phosphorous method, provided the name of the person who taught

him to cook methamphetamine, and told Park where in M inard’s house Park

would find particular items used to manufacture methamphetamine. Park was

able to corroborate both the location of the items M inard mentioned and

information M inard provided about the two other people with whom M inard

shared the house.

      Barbara Lynch, M inard’s mother, attempted to demonstrate M inard’s

mental confusion on M arch 29 and 30, but the district court determined her

testimony was insufficient to temper Ross’ and Park’s testimony and the

information contained in M inard’s medical records. Lynch testified M inard

drifted off during her visits to the hospital and, upon reawakening, was surprised

to see her. She also said M inard did not remember from one day to the next that




sleeping. Ross also noted M inard opened his eyes spontaneously and responded
to her commands at 11:00 a.m. and that, at 1:00 p.m. when Park arrived, M inard’s
vital signs were stable.

                                        -10-
she had visited him the day before and mistakenly thought his daughter had

visited him in the hospital. On cross examination, however, Lynch admitted

M inard was not “incoherent, it w as just that he would be kind of dazed.” Lynch

also had difficulty remembering the dates of her visits and whether M inard

exhibited confusion on M arch 29, the day before his interview with Detective

Park, or on M arch 30.

      On the issue of pain medication, prior to Detective Park’s visit, M inard had

last received four milligrams of morphine intravenously at 8:48 p.m. on the

evening of M arch 29, nearly eighteen hours before the interview with Detective

Park. Nurse Ross testified every administration of morphine is noted on a

patient’s chart and confirmed M inard did not have the ability to administer

morphine to himself. Nurse Ross testified that, although pain medication affects

different patients differently, four milligrams of morphine usually lasts four to

five hours. There was no evidence M inard received other mind-altering drugs on

M arch 29 or 30.

      In terms of M inard’s pain level, Nurse Ross testified about M inard’s self-

reports of pain. At 7:00 a.m. on M arch 30, before the interview, M inard had no

com plaint of pain. When he complained of pain at 2:14 p.m., after the interview ,

he rated his pain as a seven on a one-to-ten scale. Detective Park testified M inard

may have appeared to be in a bit of discomfort when he adjusted his position in

bed, but there were no indications of extreme pain.

                                        -11-
      B ased on the evidence noted herein and other evidence in the record, we

conclude M inard’s mental and physical condition did not impair his ability to

voluntarily, knowingly, or intelligently waive his Fifth Amendment rights.

Additionally, because we conclude there was no police coercion at any point

during the M arch 30 encounter, this court affirms the district court’s

determination that M inard’s subsequent statements to police were voluntary and

given freely. See United States v. Erving L., 147 F.3d 1240, 1249 (10th Cir.

1998) (“[I]t is clear after Connelly that a confession is only involuntary . . . if the

police use coercive activity to undermine the suspect’s ability to exercise his free

will.”). The district court properly denied M inard’s suppression motion as the

m otion related to the M arch 30 interview.

B.    April 2 H ospital Room Interview

      According to Detective Park’s uncontroverted testimony, Park returned to

the hospital on April 2, 2004 with Detective Allen Chute to question M inard about

the shooting. M inard had been moved to a standard hospital room. Park checked

with a nurse prior to entering M inard’s room. Unlike the earlier visit, M inard was

awake when Park and Chute entered the room and was “extremely cognizant” and

“fully aw are” from the beginning of the interview. Although Park did not have a

waiver form for M inard to sign on this visit, Park read M inard his M iranda rights

from a card; M inard said, “Yeah, I’ll talk with you.” M inard then told the

detectives about the shooting incident, including admitting his ownership of the

                                           -12-
.357 caliber gun used to fire at Christopher Spindler. M inard also told Park about

the .22 caliber pistol located under an ottoman in the living room. This interview

lasted approximately ten to fifteen minutes.

      M inard does not seriously challenge the waiver or statements he made in

this interview as involuntary. Rather, he alleges they should be suppressed as fruit

of the allegedly illegal earlier interview. Because this court has determined the

legality of the earlier interview , there is no constitutional problem with the April 2

interview.

C.    April 29 Jailhouse Interview

      M inard’s challenge to his third police interview alleges Detective Chute and

Special Agent W hitney created a coercive environment by discussing the

possibility that M inard had cancer. M inard contends the conversation so unsettled

him that his M iranda waiver w as invalid and his statements were involuntary.

Upon a review of the evidence presented to the district court, this court agrees

with the district court’s assessment that the record is devoid of evidence to support

M inard’s position.

      Detective Chute testified he recalled hearing early in the investigation that

M inard possibly had cancer. He remembered asking M inard about this at the

beginning of the interview, but denied telling M inard he had cancer. Chute said

M inard responded to the officers’ inquiry by saying he did not have cancer. Agent




                                         -13-
W hitney then read M inard his M iranda rights from a standard ATF waiver form, 3

which M inard then read for himself and signed. Chute testified neither he nor

W hitney made promises to M inard in exchange for his willingness to talk to them.

      Other than conclusory arguments in M inard’s brief, there is no indication

that M inard’s decision to talk with Chute and Whitney on April 29 was influenced

by the cancer discussion. Chute testified the entire interview lasted twenty-five to

thirty minutes. He thought M inard seemed comfortable, aware, and cognizant of

his surroundings during the interview. M inard told Chute and Whitney about the

shooting and the chase and gun fight that preceded it, admitted again that he used

a .357 caliber gun to fire at Christopher Spindler, and told Chute where to look for

the .357 W esson if detectives couldn’t find the gun in his house. M inard also told

the officers about his methamphetamine use: he indicated he manufactured

methamphetamine mostly for his own use but also sold it to pay his bills and rent.

He estimated he manufactured approximately two to three ounces per week from

Christmas 2003 to M arch 2004 and sold it at $900 per ounce.

      Although this court questions the officers’ rationale for mentioning cancer

to M inard at all, the officers’ conduct does not am ount to “coercive activity to

undermine the suspect’s ability to exercise his free will.” United States v. Lugo,




      3
       Although it is unclear from the record whether this cancer discussion
occurred prior to or after M inard signed a waiver form, M inard’s counsel at oral
argument said the discussion happened first.

                                         -14-
170 F.3d 996, 1004 (10th Cir. 1999). As the district court correctly determined,

there is no evidence to suggest M inard’s w ill was overborne or to indicate his

inculpatory statements were made involuntarily. Additionally, there is no

suggestion M inard’s waiver was not knowing or intelligent. This court therefore

concludes M inard’s waiver was valid and his statements were voluntary.

IV.   Conclusion

      This court affirms the district court’s denial of M inard’s suppression

motion.

                                       ENTERED FOR THE COURT



                                       M ichael R. M urphy
                                       Circuit Judge




                                         -15-
