Entered April 29, 1981
In their Petition for Rehearing and Rehearing En Banc, counsel for appellee have pointed out certain factual inaccuracies in our opinion of March 23, 1981. There, we indicated that the initial hearing for Melanson and his co-defendant, Edwina Cyr, began on the morning of Friday, February 8, 1980, recessed, and then resumed in the afternoon, with bail being set for the defendants only at the conclusion of the afternoon portion of the proceedings. Counsel for appellee now point out that in actuality bail in the amount of $50,000 was set for Melanson at the end of the hearing on the morning of February 8. We are told that Melanson did not come back before the magistrate until the following Monday, February 11, at which time, with counsel present, bail was reviewed and reduced to $25,000. (Our description of the timing of the proceedings is apparently correctly as to Cyr, who came back before the magistrate on the afternoon of Friday, February 8, with counsel present. Bail was then set for her at $10,000 without surety.)
As counsel recognizes, the inaccuracies in our opinion are the result of incorrectly dated transcripts in the record on appeal. The record of the morning and afternoon hearings on February 8, as well as the later hearing on February 11, comprise a single transcript bearing the date February 8, 1980. A reading of the transcript does not expose the inaccuracy of that date. The problem is now pointed out to us for the first time.
The court appreciates having these matters brought to our attention. However, they do not undermine the cornerstone of our opinion, which is the fact that Melanson's "blurted out" remarks were knowingly volunteered in an effort to assist a codefendant and were not improperly elicited or uttered in response to a percieved need to assert his own rights.
Chief Judge Coffin does not join in the Memorandum and Order. He would vote to grant the Petition for Rehearing.
* Of the Seventh Circuit, sitting by designation.