Opinion
No. 81-1739.
Submitted October 6, 1981.
Decided October 12, 1981.
R. Scott Stewart, William S. Heigaard, P. C., Langdon, N. D., for appellant.
James R. Britton, U.S. Atty., Lynn E. Crooks, Asst. U.S. Atty., Fargo, N. D., for appellee.
Appeal from the United States District Court for the District of North Dakota.
Before HEANEY, HENLEY and McMILLIAN, Circuit Judges.
Linus Roy Poitra was convicted of burglary in violation of Title 18, U.S.C. § 1153, as defined by the North Dakota Burglary Statute, sections 12.1-22-02 and 12.1-32-01 of the North Dakota Century Code. He was sentenced to a five-year term of incarceration. On appeal, his sole contention is that his oral confession was improperly admitted into evidence at his trial because the law enforcement officers who interviewed him had promised him that if he confessed, he would not be prosecuted. The trial court conducted an evidentiary hearing on this issue prior to trial and found:
the Miranda Warnings were given to him, the defendant knowingly and intelligently waived his privilege against self-incrimination, the defendant voluntarily, knowingly and intelligently waived his right to have retained or appointed counsel at the interrogation and the oral confession was freely and voluntarily made and that there were not any inducements or promises made to him which caused him to make the oral confession.
It denied Poitra's motion to suppress the evidence as to his confession.
We have carefully reviewed the record and hold that the trial court's findings were not clearly erroneous. Two law enforcement officers testified at the hearing to suppress that they were present when the confession was given by Poitra and that he was not told that if he confessed, he would not be prosecuted. Poitra testified to the contrary. It was for the trial court to determine the credibility of the witnesses. We will not disturb its findings. The conviction of Poitra is affirmed.