Davie v. Mitchell

RECOMMENDED FOR FULL-TEXT PUBLICATION

Pursuant to Sixth Circuit Rule 206

File Name: 08a0397p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

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X

Petitioner-Appellant, -

RODERICK DAVIE,

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No. 03-4293

v.

,

>

BETTY MITCHELL, Warden, -

Respondent-Appellee. -

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Appeal from the United States District Court

for the Northern District of Ohio at Cleveland.

No. 99-02400—James G. Carr, Chief District Judge.

Argued: July 18, 2007

Decided and Filed: November 12, 2008

Before: MERRITT, COLE, and ROGERS, Circuit Judges.

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COUNSEL

ARGUED: David C. Stebbins, FEDERAL PUBLIC DEFENDER’S OFFICE, Columbus, Ohio,

Kathleen A. McGarry, McGARRY LAW OFFICE, Glorieta, New Mexico, for Appellant. Stephen

E. Maher, OFFICE OF THE OHIO ATTORNEY GENERAL, Columbus, Ohio, for Appellee.

ON BRIEF: David C. Stebbins, FEDERAL PUBLIC DEFENDER’S OFFICE, Columbus, Ohio,

Kathleen A. McGarry, McGARRY LAW OFFICE, Glorieta, New Mexico, for Appellant. Stephen

E. Maher, OFFICE OF THE OHIO ATTORNEY GENERAL, Columbus, Ohio, for Appellee.

ROGERS, J., delivered the judgment of the court and an opinion. COLE, J. (pp. 17-23),

delivered a separate concurring opinion. MERRITT, J. (pp. 24-34), delivered a separate dissenting

opinion.

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OPINION

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ROGERS, Circuit Judge. The Ohio courts have upheld the sentence of defendant Roderick

Davie to death for the brutal and gruesome murder of two victims. He was also convicted on an

attempt to kill a third. On a subsequent petition for a federal writ of habeas corpus, the district court

below rejected contentions that defendant’s Miranda rights had been violated, that his penalty-phase

jury instructions had been constitutionally deficient, and that prosecutorial conduct had denied him

due process. These determinations were correct, notwithstanding Davie’s arguments on appeal.

1

No. 03-4293 Davie v. Mitchell Page 2

With respect to the Miranda claim in particular, the substantial deference that the law

requires us to give to the state court’s application of United States constitutional law in habeas cases

compels us to uphold the Ohio courts’ denial of Davie’s Miranda claim. Indeed, even fresh

application of Supreme Court precedent shows that Davie’s Miranda rights were not violated by the

police actions in this case, which included four instances of questioning—each following a Miranda

warning—over a six-hour period.

I.

On June 27, 1991, Davie killed John Coleman and Tracey Jefferys, and tried to kill John

Everett. In a taped confession, Davie admitted that he “flipped out” the morning of the crime and

“went down to VCA and shot ’em up.” He described how he entered the building, made his three

victims lie on the floor, and shot them. He described how he beat one victim with a chair when he

ran out of bullets, and attempted to run down one victim with a truck. He also described his

activities after he committed the shootings.

At trial, Donna Smith, an eye witness, testified that, as she approached the Veterinary

Companies of America (“VCA”) warehouse on the morning of the shootings, she noticed a bleeding

man stumble across the parking lot and collapse on a sidewalk. JA 901-05. Smith then noticed

another man come out of the building and run around to the driver’s side of a truck in the dock area.

Thereafter, Smith testified that the truck came “flying out” of the parking lot across both lanes of

the street in an attempt to hit the injured man. The injured man was able to shield himself from the

truck by falling underneath a bridge, and the truck rammed into the bridge. Smith testified that the

man in the truck left the truck and jumped over the side of the bridge.

John Everett, one of Davie’s victims and the man that Smith witnessed stumble across the

parking lot, testified to the following events. JA 906-47. On the morning of the shootings, Everett

was in the VCA lunch room. Davie, accompanied by a crying Tracey Jefferys (another VCA

employee), came up from behind Everett holding a gun. Davie ordered Everett out of the lunch

room and, once in the warehouse area, ordered Everett and Jefferys to “lay face down.” Davie then

ordered John Colman, who was loading his truck at the loading dock, to join Everett and Jefferys.

After Everett, Jefferys, and Coleman had complied with Davie’s commands, Davie began shooting.

Everett testified that after numerous shots were fired, Jefferys got up and ran away. Davie brought

Jefferys back, and Everett heard Davie remark to Coleman “You ain’t dead yet, huh, brother?” and

fire another shot. Everett testified that Davie then took Everett’s wallet and told Jefferys that she

was lucky that he was out of bullets. At that point, Jefferys again attempted to flee, and Davie

followed. Everett heard Jefferys scream for three or four minutes and, eventually, the screaming

stopped.

Everett escaped the warehouse and made his way out of the building and to the street.

Thereafter, Everett noticed Davie revving the engine of a truck in the parking lot. Davie attempted

to use the truck to run Everett down, but Everett escaped by jumping under a bridge. Everett heard

the truck crash into the bridge and, shortly thereafter, Davie arrived under the bridge. At that time,

Davie began beating Everett with a stick on the left side of Everett’s head, and attempted to gouge

Everett’s eyes out with the stick. Everett testified that Davie had the look of “a man on a mission

and he was definitely going to kill me.” At some point, Davie stopped beating Everett, looked up

over the bridge, and left the area. Everett was treated at the hospital for, among other things, three

gunshot wounds—one to the head, one to the shoulder, and one to the arm.

There is no need to summarize the remainder of the trial testimony. It is sufficient to say that

the testimony established overwhelmingly that Davie committed a bloody and gruesome series of

crimes on the morning of June 27, 1991. Testimony established that Tracey Jefferys died in VCA’s

lunch room due to blunt force trauma. A metal folding chair was found next to her body. Coleman

No. 03-4293 Davie v. Mitchell Page 3

died in the warehouse as a result of five bullet wounds—two of which were located in the back of

his head.

The circumstances of Davie’s confession, detailed more fully in the concurrence, are as

follows. At approximately 8:30 a.m., Davie was arrested, read his Miranda rights, and transported

to the police station. At approximately 9:05 a.m. at the police station, Detective Hill read Davie his

Miranda rights with Lieutenant Carl Blevins present. Davie initialed the rights form but refused to

sign the waiver. At that point, the officers made no attempt to interrogate Davie. At approximately

9:59 a.m., Captain Downs and Blevins entered the interrogation room and again advised Davie of

his Miranda rights. Davie initially made some comments, he ultimately declined to speak further

with the officers, and the interview ceased. At approximately 12:15 p.m., authorities again

questioned Davie. Davie provided some information to police, including the fact that he had his gun

with him that morning, but he did not confess to the crime. At 12:35 p.m., Davie indicated that he

had nothing more to say and the interview ceased. At approximately 2:00 p.m., Davie indicated that

he wanted to speak with Detective Vingle. After Vingle advised him of his Miranda rights, Davie

confessed. See 686 N.E.2d 245, 256 (Ohio 1997). At no time during the relevant events did Davie

ask for a lawyer.1

II.

A.

Davie claims that the state trial court unconstitutionally admitted his confession into

evidence. The deference that we owe to state court determinations regarding constitutional law on

federal habeas requires that we uphold the Ohio Supreme Court’s rejection of Davie’s Miranda

claim. The law by now is clear that under AEDPA, “an unreasonable application of federal law is

different from an incorrect application of federal law.” See Williams v. Taylor, 529 U.S. 362, 410

(2000) (emphasis in original). Instead of asking whether the state court’s application was erroneous,

“a federal habeas court making the ‘unreasonable application’ inquiry should ask whether the state

court’s application of clearly established federal law was objectively unreasonable.” Id. at 409. Our

task in this case is to evaluate the Ohio Supreme Court’s application of U.S. Supreme Court

precedents for reasonableness, not to undertake an independent evaluation.

After detailing the events leading to Davie’s statements, the Ohio Supreme Court reasoned:

Contrary to Davie’s arguments, he did not unequivocally assert his constitutional

rights. Instead, he waived his right to remain silent during both interviews with

Vingle and Sines, despite his failure to initial the waiver-of-rights portion of the

form. This situation is similar to that in State v. Scott (1980), 61 Ohio St. 2d 155, 15

O.O.3d 182, 400 N.E.2d 375, which followed the decision in North Carolina v.

Butler (1979), 441 U.S. 369. In Butler, the Supreme Court noted that “in at least

some cases waiver can be clearly inferred from the actions and words of the person

interrogated.” Id. at 373. In Scott, the accused acknowledged that he understood his

Miranda rights, but refused to sign a waiver form. Nevertheless, he agreed to answer

questions and never requested counsel. The Scott court upheld the admissibility of

1

It overstates things to say that Davie was “confronted” “six times within a 5-1/2 hour period between his arrest

at 8:30 A.M. that morning and his confession around 2:00 P.M. that afternoon.” Dissent at 24. Such a count includes

the interaction between Davie and Sergeant Massucci when Massucci went to Davie’s cell only to take photographs, and

also the interaction (hardly a confrontation) between Davie and Detective Vingle after Davie himself requested Vingle’s

presence. All told, Davie was read his Miranda rights four times in the almost six hour period between his arrest and

his request to speak with Vingle, and officers interacted with Davie at the police station three times in almost five hours

before Davie initiated contact with Vingle and confessed.

No. 03-4293 Davie v. Mitchell Page 4

the accused’s statements and held, “[T]he question is not one of form, but rather

whether the defendant in fact knowingly and voluntarily waived the rights delineated

in Miranda * * *.” Scott at paragraph one of the syllabus. The similar facts of this

case demonstrate that Davie waived his Miranda rights even though he failed to

initial the waiver part of the form.

When Davie indicated in his interview with Blevins and Hill that he no longer

wished to talk, his requests were scrupulously honored by the officers. However, in

cutting off the earlier interviews, Davie did not preclude a later interrogation by other

officers. See Michigan v. Mosley (1975), 423 U.S. 96, 104. Moreover, Davie never

asserted his right to have counsel present.

Finally, it is clear that Davie’s 2:00 p.m. conversation with police, in which he

implicated himself in the murders, was properly admitted, since he initiated that

conversation himself. See Edwards v. Arizona (1981), 451 U.S. 477, 485.

686 N.E.2d at 256-57(citations omitted).

Even if we might find a way to disagree with the unanimous opinion of the Ohio Supreme

Court in this regard, that court’s analysis amounts to a thoughtful and certainly reasonable

application of United States Supreme Court law, as explained in detail by Judge Carr in the district

court below. See 291 F. Supp. 2d 573, 595-600 (N.D. Ohio 2003). The district court accordingly

properly denied habeas relief on this ground.

B.

Indeed, the reasonableness of the state court’s analysis is supported by a fresh application

of Supreme Court precedents to the record in this case. Even under a nondeferential analysis, the

police did not violate Davie’s constitutional rights under Miranda v. Arizona, 384 U.S. 436 (1966).

1.

The Ohio Supreme Court’s determination that Davie initiated the 2 p.m. conversation is

directly supported by the Supreme Court’s decision in Oregon v. Bradshaw, 462 U.S. 1039 (1983).

In Bradshaw, a plurality of the Supreme Court concluded that authorities could speak to a defendant,

without depriving him of his rights, when the defendant asked “Well, what is going to happen to me

now?” even though the defendant had previously invoked his right to counsel. See id. at 1041-42.

Because, in asking this question, the defendant had “evinced a willingness and a desire for a

generalized discussion about the investigation,” id. at 1045-46, the plurality concluded that the

admission of evidence was proper so long as the defendant had knowingly and intelligently waived

his rights to counsel and silence. Id. at 1046.

Here, like the defendant in Bradshaw, Davie evinced a willingness to discuss the

investigation without influence by authorities. Indeed, the question that Davie asked of Vingle was

related to the very subject matter of the criminal investigation for which Davie had been detained.

See id. at 1053-54 (Marshall, J., dissenting). This court, in United States v. Whaley, 13 F.3d 963

(6th Cir. 1994), has reconciled the plurality and dissent in Bradshaw as stating a general rule that

“an Edwards initiation occurs when, without influence by the authorities, the suspect shows a

willingness and a desire to talk generally about his case.” Id. at 967. In this case, Davie was placed

in a jail cell at approximately 12:35 p.m. About an hour and a half later, Sergeant Massucci went

to Davie’s cell for the purpose of obtaining Davie’s photograph. When Massucci arrived, Davie

asked him for permission to make a phone call. After returning from the phone call, Davie told

Massucci that he wished to speak to Detective Vingle. When Vingle arrived, Davie asked Vingle

how the news media had obtained information about Davie and his girlfriend, and inquired of

No. 03-4293 Davie v. Mitchell Page 5

Vingle, “What did Styx tell you?” Styx, of course, was Dwayne Thomas, the informant who

originally contacted the police and who was with Davie before Davie was arrested. It was after this

interaction between Vingle and Davie—initiated by Davie—that Davie confessed to the shooting.

Vingle brought Davie to an interview room, re-advised Davie of his Miranda rights, and Davie

confessed on tape.

Under the analytical framework of the Bradshaw plurality, Davie’s confession was properly

admitted at trial. First, Davie initiated contact with the police after he invoked his right to silence.

The record indicates that one and a half hours after Davie was placed in a jail cell, Davie requested

to see Vingle and questioned Vingle in a manner directly pertaining to the investigation. There is

no evidence in the record that either Davie’s request to see Vingle or Davie’s questioning of Vingle

was the product of improper influence on the part of the police. Davie was in his cell for an hour

and a half before requesting Vingle’s presence, and the record establishes that Massucci merely took

photographs of Davie and granted Davie’s request to make a phone call.

Rhode Island v. Innis, 446 U.S. 291 (1980), in no way supports a contrary conclusion that

the 2:00 p.m. encounter was not a sufficient initiation of contact under Bradshaw. See Dissent at

33. The issue in Innis was what police statements amount to interrogation so as to violate Miranda

once a suspect has invoked his Miranda rights. The Court concluded that “the Miranda safeguards

come into play whenever a person in custody is subjected to either express questioning or its

functional equivalent.” 446 U.S. at 300-01. In that case, the defendant invoked his right to counsel

but later revealed the location of a gun used in a robbery after one of the officers, in the defendant’s

presence, remarked to another officer that there were “a lot of handicapped children running around

in this area” and “God forbid one of them might find a weapon with shells.” Id. at 294-95. The

Court held that this was not the functional equivalent of express questioning, id. at 302, and, in any

event, the police made no such comments to Davie in this case. After making a phone call, Davie

initiated the contact with Vingle on his own, and in the absence of any police influence. Davie’s

questioning of Vingle clearly evinced a willingness to talk about the subject matter of the

investigation, thereby satisfying the first requirement of Bradshaw.

Second, the totality of the circumstances indicates that Davie knowingly and intelligently

waived his rights to counsel and silence. This determination depends upon “the particular facts and

circumstances surrounding [the] case, including the background, experience, and conduct of the

accused.” Johnson v. Zerbst, 304 U.S. 458, 464 (1938). In examining whether Davie’s waiver was

knowing and intelligent, the state appellate court concluded that

[t]here is no evidence in the record that the police resorted to any physical pressure,

coercion or deception to elicit [Davie’s] statements. In fact, [Davie] initiated the

third interview which led to his confession. There is also no doubt that [Davie] was

effectively and adequately apprised of his Miranda rights. Moreover, his initials and

signature on the forms, his tape recorded statements, and his cooperation during the

interviews are evidence that he understood his rights and the consequences of

relinquishing them.

State v. Davie, No. 92-T-4693, 1995 WL 870019, at *22 (Ohio Ct. App. Dec. 27, 1995). There is

no reason to dispute the Ohio appellate court’s conclusions here. After Davie initiated contact with

Vingle, Vingle brought Davie to an interview room, Vingle re-advised Davie of his Miranda rights,

and Davie confessed to the crime. Prior to confessing, Davie initialed a constitutional rights form

indicating that he understood his rights, and signed the form. During the interview, officers orally

read Davie his rights, and Davie remarked that he understood those rights, including the waiver

No. 03-4293 Davie v. Mitchell Page 6

provision. Although Davie did not initial the waiver section on the form, Davie explicitly stated that

he agreed to speak with the officers, and therefore effectively waived his Miranda rights.2

In United States v. Kaufman, 92 F. App’x 253 (6th Cir. 2004), we held, albeit in an

unpublished decision, that there was no Miranda violation in a case, like this one, where the

defendant had refused to sign a waiver form but freely spoke to police after being advised of his

Miranda rights. Id. at 256. We relied in Kaufman on the Supreme Court’s holding in North

Carolina v. Butler, 441 U.S. 369, 374-76 (1979), that the Constitution did not require an explicit

waiver of Miranda rights. Indeed, the defendant in Butler had said to the police, in words that

closely prefigure the instant case, “I will talk to you but I am not signing any form.” Id. at 371; see

also United States v. Miggins, 302 F.3d 384, 397 (6th Cir. 2002) (written waiver not necessary to

establish knowing, intelligent, and voluntary waiver of Miranda rights).

It is no answer to the above analysis to assert that, because Davie repeatedly refused to initial

the waiver, he did not think that his statements could be used against him. Not only did the Miranda

rights form that officers read to Davie include the obligatory provision that “[a]nything you say can

be used against you in court,” but Davie repeatedly acknowledged that he understood this provision

throughout the morning and afternoon in question, and Davie manifested no objective signs that

indicated a misunderstanding.

Further, the law does not require that, where a defendant refuses to sign a waiver but

nonetheless agrees to speak with officers, “[i]nvestigating officers should clearly inform the accused

that his failure to sign the waiver does not prevent statements he makes from being used against

him.” Dissent at 33. No Supreme Court decision so requires, and lower court cases like United

States v. Van Dusen, 431 F.2d 1278 (1st Cir. 1970), do not support such a rule. In that case, the First

Circuit, after explaining that a refusal to sign a written waiver followed by a willingness to talk is

a “signal of some quirk of reasoning,” suggested that a further explanation on the part of the police

would have been “prudent.” Id. at 1280. The First Circuit declined, however, to formulate a

specific rule to govern police practices, explaining:

It would, we think, be folly to try to cast this principle in the form of a specific

required practice. Indeed, were we so to rule, a suspect could, by refusing to sign

and subsequently talking freely, enjoy the luxury of an immunity bath at no price at

all.

2

After officers re-advised Davie of his Miranda rights and Davie acknowledged that he understood those rights,

the relevant exchange progressed as follows:

Det. Vingle: Okay, about 5 minutes to 2 [o’clock], Sgt. Massucci came up from the jail and advised

me that you wanted to see me.

Davie: Right

Det. Vingle: And I came down and you said you wanted to talk to us while we brought you back

upstairs, right?

Davie: Yea.

Det. Vingle: Do you want to acknowledge this that you have been given your rights again? Do you

understand this one too [the waiver provision], do you want to initial that one?

Davie: It don’t matter, do it.

Det. Sines: Any particular reason why, you just don’t want to initial that part?

Davie: Right.

Det. Sines: Are you still willing to talk to us?

Davie: Right.

JA 2053.

No. 03-4293 Davie v. Mitchell Page 7

Id. Thus, rather than adopting a “specific required practice,” the Van Dusen court chose instead to

hold the government to a “measurably increas[ed]” burden of persuasion regarding whether the

waiver was knowing and intelligent. Id. Indeed, the First Circuit upheld the Miranda waiver in that

case, even though the police had not even read the Miranda warnings, but rather had let the suspect

read them to himself. Id. Thus, despite the officers’ failure to seek clarification from the defendant

regarding the refusal to sign the written waiver, the Van Dusen court held that the waiver was

effective.3

In any event, the police officers here cannot be faulted for failing to comply with such a

legally unsupportable rule. The officers did twice attempt to seek clarification from Davie regarding

his refusal to initial the waiver. During the 12:15 p.m interview, the officers questioned Davie as

follows:

Det. Sines: Roderick on this rights sheet that you signed, you acknowledged that you

understand your rights there, but you didn’t want to uh initial the waiver of rights,

okay, is that correct?

Davie: Right.

Det. Sines: Okay being as though you did that do you have any objections to talking

to us anyhow?

Davie: No I don’t.

JA 2025. Later, at the 2:00 p.m. interview, officers again attempted to seek clarification from Davie:

Det. Vingle: Do you want to acknowledge this that you have been given your rights

again? Do you understand this one too [the waiver provision], do you want to initial

that one?

Davie: It don’t matter, do it.

Det. Sines: Any particular reason why, you just don’t want to initial that part?

Davie: Right.

Det. Sines: Are you still willing to talk to us?

Davie: Right.

JA 2053. Hence, the record establishes that the officers did seek clarification from Davie regarding

the apparent incongruity between his refusal to sign the waiver and his willingness to speak. And

each time the officers sought clarification, Davie responded unequivocally that he was willing to

speak. Accordingly, because Davie reinitiated contact with authorities, 4and because Davie

knowingly and intelligently waived his rights, the confession was admissible.

3

The Ninth Circuit’s holding in United States v. Heldt, 745 F.2d 1275 (9th Cir. 1984), is also readily

distinguishable from Davie’s case. The police in Heldt “exhorted” the defendant to “answer questions anyway” despite

the defendant’s desire to remain silent. Id. at 1278.

4

While federal lower court cases like McGraw v. Holland, 257 F.3d 513, 518-19 (6th Cir. 2001), indicate that

“post-request responses after invocation of [the] right to silence may not be used by the State as a waiver of rights,”

Dissent at 31, that is not what happened here. In this case, there is no need to infer a waiver from post-request responses

because Davie clearly waived his Miranda rights before confessing. See supra note 2 and accompanying text.

No. 03-4293 Davie v. Mitchell Page 8

Application of the analysis of the plurality in Bradshaw to the facts of this case thus compels

the conclusion that Davie’s Miranda rights were not violated. Justice Powell’s concurrence in

Bradshaw, moreover, which focused on deference to the trial court and on an evaluation of the

totality of the circumstances, would a fortiori support the same conclusion. It is true that Bradshaw

dealt with initiation of questioning after invocation of the right to counsel, and that there was no

invocation of the right to counsel in Davie’s case. But this distinction if anything cuts against Davie,

as asking for counsel requires “additional safeguards” to those where a suspect has, for instance,

simply refused to sign a waiver. See Edwards v. Arizona, 451 U.S. 477, 484-85 (1981)

(distinguishing North Carolina v. Butler, 441 U.S. at 371-76).

2.

Moreover, Michigan v. Mosley, 423 U.S. 96 (1975), does not undermine the conclusion that

Davie effectively waived his Miranda rights. The Mosley Court upheld a confession that followed

a cutoff of questioning, and thus it is only by negative inference (i.e., dictum) that Mosley can be

read to support defendant at all. Although police must respect a suspect’s exercise of his right to

remain silent, police are not indefinitely prohibited from further interrogation so long as the

suspect’s right to cut off questioning was “scrupulously honored.” Id. at 104. The purpose of

Mosley’s “scrupulously honored” requirement is to safeguard against “repeated rounds of

questioning” that can serve to “undermine the will of the person being questioned.” Id. at 102. As

the Mosley Court noted, “[t]he requirement that law enforcement authorities must respect a person’s

exercise of [the option to terminate questioning] counteracts the coercive pressures of the custodial

setting.” Id. at 104. By exercising that option, a person is able to “control the time at which

questioning occurs, the subjects discussed, and the duration of the interrogation.” Id. at 103-04. A

review of the record indicates that Davie’s right to cut off questioning was fully respected in this

case.

In both Mosley and this case, the defendant cut off questioning after authorities informed the

defendant of his Miranda rights and, in both cases, authorities contacted the defendant after an

interval of time. Id. at 104. In balancing the rights of the defendant and the needs of the authorities,

the Mosley Court concluded that the authorities did not engage in repeated efforts to wear down the

defendant’s resistance. Id. at 105-06. The same conclusion is mandated here. The record indicates

that, while at the police station, authorities attempted to procure a Miranda waiver from Davie three

times before Davie initiated contact with Vingle and confessed—at 9:05 a.m., 9:59 a.m., and 12:15

p.m. Each time, Davie was properly advised of his Miranda rights at the outset of the interview, and

each time Davie indicated that he understood those rights. At the 9:05 a.m. interview, Davie

indicated that he did not want to make a statement, and the officers made no attempt to question

Davie. At the 9:59 a.m. interview, officers entered the room, asked Davie if he knew why he had

been arrested, and explained to him that they were investigating a shooting. Davie initially made

some comments, but ultimately declined to speak further with the officers. The officers then

immediately ceased the interview. At the 12:15 p.m. interview, Davie initially agreed to speak with

officers, but refused to sign the waiver of rights. Davie made some statements indicating that he did

not remember what happened that morning, and the interview concluded at 12:35 p.m. after Davie

stated that he had nothing more to say. One and a half hours later, Davie initiated contact with

Vingle and, after again being advised of his rights, confessed to the crime.

Moreover, this case is easily distinguishable from McGraw and similar lower court cases. For example, in McGraw,

although the defendant repeatedly indicated a desire to postpone questioning, the police insisted that the defendant

discuss the crime, urging that the defendant “need[ed] to tell [the detective] what was happening at the house,” and

further pressing that “we need to talk about it now,” and “[w]e have to talk about it.” McGraw, 257 F.3d at 515. After

police “[r]efus[ed] to take no for an answer,” the defendant succumbed and gave a detailed confession. Id. at 515-16.

The record shows no such pressure here. See also United States v. Tyler, 164 F.3d 150, 154-55 (3d Cir. 1998) (police

“command[ed]” defendant to “tell the truth” after invocation of right to silence).

No. 03-4293 Davie v. Mitchell Page 9

In Mosley, the defendant confessed during the second interaction with police while at the

police station. Here, authorities interacted with Davie three times at the police station before Davie

initiated contact with Vingle and confessed. The inquiry under Mosley, however, is not restricted

to the number of times that the authorities interacted with the defendant. Rather, Mosley requires

an examination of whether the officers’ conduct demonstrates a failure to respect fully the

defendant’s right to cut off questioning, thereby indicating an “effort[] to wear down [the

defendant’s] resistance and make him change his mind.” Id. at 105-06. Although repeated contacts

are suggestive of an attempt to undermine a defendant’s will, the record does not support a

conclusion that the authorities in this case engaged in such an attempt.

First, the interval of time between the interviews was not insubstantial or a short “time out.”

Officers waited almost one hour between the first and second interaction at the police station, over

two hours between the second and third, and one and a half hours had elapsed before Davie

requested to speak with Vingle. In total, approximately five and a half hours elapsed between the

time that Davie was arrested and the time that Davie contacted Vingle to confess, and authorities

read Davie his Miranda rights four times during that period. Cf. Jackson v. Dugger, 837 F.2d 1469,

1471-72 (11th Cir. 1988) (no constitutional violation where authorities advised defendant of

Miranda rights six times in a six-hour period between arrest and confession because officers

immediately ceased questioning when defendant invoked his right to silence). Further, during each

interaction, officers fully informed Davie of his Miranda rights at the outset, immediately ceased

questioning after Davie expressed his desire to remain silent, cf. id., and there is no evidence in the

record that the officers engaged in any other conduct to persuade Davie to change his mind.5 Cf.

United States v. Olof, 527 F.2d 752, 753 (9th Cir. 1975) (holding that the object of a successive

interrogation was to wear down defendant’s resistance when officers reinitiated contact with

defendant after three hours by confronting him with the description of the unpleasantness of prison

for the obvious purpose of getting him to abandon his self-imposed silence); United States v.

Hernandez, 574 F.2d 1362, 1368 (5th Cir. 1978) (finding constitutional violation where defendant

was held incommunicado for five hours in the “close quarters of a police wagon” before being

subjected to repeated and immediate interrogations in a span of 45 minutes). And, making this an

even more compelling case than Mosley, it was Davie—and not the authorities—who initiated the

final contact that led to the confession. In so doing, Davie was unquestionably able to “control the

time at which questioning occurs, the subjects discussed, and the duration of the interrogation,”

Mosley, 423 U.S. at 103-04, regardless of whether Vingle questioned Davie after Davie initiated the

contact. For these reasons, it cannot be said that the authorities in this case “undercut” Davie’s

previous decisions not to answer the officers’ inquiries. See id. at 105.

Second, Mosley does not require that the repeated questioning involve a wholly different

crime. As the Eighth Circuit held in United States v. House, 939 F.2d 659 (8th Cir. 1991), “a second

interrogation is not rendered unconstitutional simply because it involves the same subject matter

discussed during the first interview.” Id. at 662. That was one of several factors that the Court

considered in its analysis, and there is no indication in Mosley that this factor was more central to

the Court’s analysis than other factors. A leading treatise has indeed noted that, “[i]n Mosley the

Court observed that the defendant was later questioned about a different crime, but it is unclear how

significant this factor was intended to be.” See 1 Charles Alan Wright & Andrew D. Leipold,

Federal Practice & Procedure: Criminal § 76, at 226-27 (4th ed. 2008). The other factors the Court

considered—which, for the reasons discussed above, indicate that no constitutional violation

occurred in this case—include (1) whether police advised the defendant of his Miranda rights at the

5

The officer’s statement that “If you have nothing to tell us, we’ll go from there okay,” does not necessarily

convey the idea that if Davie did not waive his rights, he would be questioned anyway. See Dissent at 32. The statement

“we’ll go from there” is susceptible of numerous interpretations, and the actual conduct of the officers in this case does

not support such a connotation. At each instance that Davie refused to speak further, officers immediately ceased

questioning.

No. 03-4293 Davie v. Mitchell Page 10

first interrogation, (2) whether police immediately ceased the interrogation upon defendant’s

request, (3) whether police resumed questioning after a significant period of time, and (4) whether

police provided new Miranda warnings at the successive interviews. As the Fourth Circuit reasoned

in Weeks v. Angelone, 176 F.3d 249 (4th Cir. 1999), “[w]here other factors indicate that a

defendant’s right to cut off questioning was ‘scrupulously honored,’ however, the mere fact that a

second interrogation involves the same crime as the first interrogation does not necessarily render

a confession derived from the second interrogation unconstitutionally invalid under Mosley.” Id.

at 269. Indeed, the “wholly different crime” factor has very limited applicability in cases where, as

here, the defendant confessed after reinitiating contact with the officers. To satisfy the first prong

of the Bradshaw inquiry, the suspect’s initiation of contact must pertain to the instant investigation.

It naturally follows from this that any subsequent interrogation by police will pertain to the same

crime. Mosley thus cannot be categorically distinguished on the ground that the questioning in

Mosley involved a different crime.

For the foregoing reasons, the admission of Davie’s confession does not warrant habeas

relief.

III.

A.

Nor do the penalty-phase jury instructions in this case warrant habeas relief. Defendant

argues that the “jury was instructed that it must unanimously ‘acquit’ Roderick Davie of the death

penalty before it could consider any of the potential life sentences,” and that such an instruction

violated Davie’s constitutional rights. The Ohio courts largely did not consider this claim, because

Davie did not timely raise the claim in state court. The district court likewise held that because

Davie first raised the claim in post-conviction proceedings, it was procedurally barred. 291 F. Supp.

2d at 620.

As an initial matter, we agree with the district court that we cannot reach the merits of

Davie’s substantive “acquittal-first” claim because that claim has been procedurally defaulted.

Davie first raised the substantive “acquittal-first” claim in his second petition for post-conviction

relief on March 1, 2000. But Davie defaulted on all claims raised in that petition because he did not

comply with an adequate and independent state procedural rule. Under Ohio Rev. Code § 2953.23,

a second, successive, or untimely petition is permitted under limited circumstances. In Davie’s case,

the Ohio courts determined that Davie’s second petition failed to meet the criteria set out in the

statute. See State v. Davie, 2001 WL 1647193, at *1-*6 (Ohio Ct. App. Dec. 21, 2001). This court

has previously held that where an Ohio defendant is unable to satisfy the statutory requirements to

bring a second post-conviction petition, procedural default analysis applies. See Broom v. Mitchell,

441 F.3d 392, 399-401 (6th Cir. 2006). Because the claims raised in Davie’s second post-conviction

petition could have been raised in his first post-conviction petition, those claims are procedurally

defaulted absent a showing of cause and prejudice, or a miscarriage of justice. See id. at 401.

In his brief to this court, Davie does not attempt to show cause and prejudice for the

procedural default with respect to his second petition for post-conviction relief, or otherwise argue

that a miscarriage of justice will result from enforcing the procedural bar. Indeed, the record is

devoid of any evidence that Davie had cause for failing to raise the claim in his first post-conviction

petition. Instead, Davie argues that the “acquittal-first” claim was properly raised in his Ohio

Appellate Rule 26(B) application. It is true that the substantive “acquittal-first” claim was included

as part of Davie’s Rule 26(B) application filed on March 31, 2000. But that application cannot be

construed as raising the substantive “acquittal-first” claim.

No. 03-4293 Davie v. Mitchell Page 11

Rule 26(B) provides that “a defendant in a criminal case may apply for reopening of the

appeal from the judgment of conviction and sentence, based on a claim of ineffective assistance of

appellate counsel.” The court must grant an application for reopening if the applicant demonstrates

that “there is a genuine issue as to whether the applicant was deprived of the effective assistance of

counsel on appeal.” Ohio App. R. 26(B)(5). To determine whether the applicant has raised a

genuine issue of ineffective assistance, Ohio courts employ the two-pronged analysis of Strickland

v. Washington, 466 U.S. 668 (1984). See State v. Reed, 660 N.E.2d 456, 458 (Ohio 1996). If the

application to reopen is granted, the case proceeds as on initial appeal. Ohio App. R. 26(B)(7).

By its very nature then, a Rule 26(B) application is a claim of ineffective assistance of

appellate counsel. Consistent with this view of the Rule, Davie claimed in his Rule 26(B)

application that his direct appeal should be reopened because his appellate counsel was ineffective

for, among other things, failing to raise the “acquittal-first” jury instruction argument. JA 2768. As

this court has previously noted, however, bringing an ineffective assistance claim in state court

based on counsel’s failure to raise an underlying claim does not preserve the underlying claim for

federal habeas review because “the two claims are analytically distinct.” White v. Mitchell, 431 F.3d

517, 526 (6th Cir. 2005). Thus, a Rule 26(B) application “based on ineffective assistance cannot

function to preserve” the underlying substantive claim. Id.; see also Roberts v. Carter, 337 F.3d

609, 615 (6th Cir. 2003) (noting that, “[i]n light of the requirements of Rule 26(B), the court’s

holding must be read as pertaining to the merits of” the ineffective assistance claim, not the

underlying state procedural rule claim).

From this, it follows that Davie’s Rule 26(B) application cannot be construed as raising the

substantive “acquittal-first” claim. And because the Ohio courts determined that Davie failed to

demonstrate a “genuine issue” that his appellate counsel was ineffective for failing to raise that

claim, the courts refused to open Davie’s direct appeal, thereby imposing a procedural bar to

consideration of the claim. As a consequence, Davie’s substantive “acquittal-first” claim is

procedurally defaulted—Davie failed to bring the claim on direct and collateral review in state court,

and the state courts determined that Davie did not make the requisite showing in his Rule 26(B)

application to justify reopening his direct appeal. Accordingly, our review in this case is limited to

Davie’s claim that his counsel was ineffective for failing to raise the “acquittal-first” argument, a

claim that was adjudicated in the state courts. It is true that if this court were to find that Davie’s

ineffective assistance claim has merit, that could serve as cause to excuse the procedural default of

the substantive “acquittal-first” claim. See Edwards v. Carpenter, 529 U.S. 446, 451 (2000). But

it is necessary to make that determination prior to excusing the procedural default, and, for the

reasons stated in Part III.B. below, Davie cannot establish cause based on the performance of his

appellate counsel.

It is true that the analysis above is somewhat complicated by the fact that any review of an

ineffective assistance claim will likely include some sort of determination that the substantive claims

underlying the ineffective assistance claim lack merit. Indeed, if the underlying substantive claims

have no merit, the applicant cannot demonstrate that counsel was ineffective for failing to raise those

claims on appeal. Here, the Ohio Court of Appeals dealt with Davie’s ineffective assistance claim

in just that manner. After remarking that Davie’s substantive “acquittal-first” claim would

ordinarily be barred by res judicata because Davie challenged the jury instruction on multiple

grounds on direct appeal, the Ohio Court of Appeals made clear that Davie’s Rule 26(B) application

did not assert the underlying substantive claims, but rather asserted a claim that appellate counsel

was ineffective for failing to raise those substantive claims. JA 2343. In analyzing whether Davie

had raised a “genuine issue” of ineffective assistance, however, the court held that Davie failed to

meet his burden because the underlying substantive claims, including the “acquittal-first” claim, had

no merit. JA 2348. The Ohio Supreme Court affirmed the judgment of the appellate court on the

basis that Davie had failed to raise a “genuine issue” that he was deprived of effective assistance on

No. 03-4293 Davie v. Mitchell Page 12

direct appeal, and did not address the merits of the “acquittal-first” claim. See State v. Davie, 772

N.E.2d 119, 121 (Ohio 2002).

These state court decisions justify review only of Davie’s claim that his counsel was

ineffective for failing to raise the “acquittal-first” argument on direct appeal. The mere fact that

Davie’s substantive “acquittal-first” claim was included as an underlying assignment of error in the

Rule 26(B) application does not, given the comity and federalism concerns implicated in habeas

cases, justify reaching the merits of that claim. Although the determination of whether appellate

counsel was ineffective for failing to raise a substantive claim may, in some cases, involve an

inquiry into the merits of the underlying substantive claim, the fact remains that the two claims are

“analytically distinct” for purposes of the exhaustion and procedural default analysis in habeas

review. Reaching the merits of the substantive “acquittal-first” claim in this case disregards the

operation of two independent and adequate state procedural rules that barred consideration of that

claim in state court. Davie procedurally defaulted the claim in the second post-conviction petition

because the requirements of Ohio Rev. Code § 2953.23 were not met. Moreover, he failed to raise

the claim properly on direct review, and the Ohio courts refused to excuse this failure when they

determined that Davie had not established a “genuine issue” of ineffective assistance of appellate

counsel. Because, for the reasons stated below, that ineffective assistance determination was correct,

it is not proper for this court to reach the merits of Davie’s substantive “acquittal-first” claim.

B.

A brief examination of the state of law at the time of Davie’s direct appeal indicates that

Davie’s appellate counsel was not ineffective for failing to raise the “acquittal-first” argument.

Because Davie’s ineffective assistance claim was adjudicated on the merits in state court, AEDPA’s

deferential standard of review applies to that claim. As with Davie’s Miranda claim, the proper

inquiry here is whether the state court’s disposition of the ineffective assistance claim was an

unreasonable application of clearly established federal law, as determined by the Supreme Court.

See 28 U.S.C. § 2254(d)(1). The record indicates that it was not.

By way of background, the trial judge in this case instructed the jury as follows:

If . . . you’re firmly convinced that the aggravating circumstances . . . are sufficient

to outweigh the factors in mitigation, then the State has met its burden of proof and

the Jury shall recommend to the Court that the sentence of death shall be imposed on

the Defendant. . . . If, on the other hand, you’re not firmly convinced that the

aggravating circumstances . . . are sufficient to outweigh the factors in mitigation,

then the State has not met its burden.

JA 1445-46. The trial judge later instructed the jury:

All 12 jurors must agree on the verdict. If all 12 jurors find by proof beyond a

reasonable doubt that the aggravating circumstances . . . outweigh the mitigating

factors, then . . . you have no choice but to make a recommendation that the sentence

of death be ordered. On the other hand, if . . . you find that the State has failed to

prove by proof beyond a reasonable doubt, that the aggravating circumstances . . .

outweigh the mitigating factors, then you will return a verdict reflecting that

decision.

JA 1456-57 (emphasis added).

To understand why Davie’s appellate counsel was not ineffective for failing to raise the

“acquittal-first” claim, one need only look to the state of the law as it existed at the time of Davie’s

direct appeal. In Mills v. Maryland, 486 U.S. 367, 373-74 (1988), the Supreme Court had held

No. 03-4293 Davie v. Mitchell Page 13

unconstitutional procedures that required a jury to agree unanimously as to each mitigating factor,

reasoning that any such requirement “impermissibly limits jurors’ consideration of mitigating

evidence.” See McKoy v. North Carolina, 494 U.S. 433, 444 (1990). Though Mills was decided

prior to Davie’s direct appeal (which took place between 1992 and 1997), it was not until more

recently that the Mills analysis was applied to jury instructions such as those given in this case.

The “acquittal-first” doctrine derived from Mills has been extended to “[a]ny instruction

requiring that a jury must first unanimously reject the death penalty before it can consider a life

sentence,” see Davis v. Mitchell, 318 F.3d 682, 689 (6th Cir. 2003), but the Davis case in 2003 was

the first case in this circuit to apply the doctrine to cases like the instant one, where the instructions

did not explicitly so instruct the jury. Id. at 684-85.6 In fact, the first case in this circuit to address

“acquittal-first” instructions was Mapes v. Coyle, 117 F.3d 408 (6th Cir. 1999), a case decided two

years after the Ohio Supreme Court decided Davie’s direct appeal. Unlike the instructions at issue

here, Mapes featured instructions that explicitly commanded the jury that “you must unanimously

find that the State has failed to prove beyond a reasonable doubt that the aggravating circumstances

of which the defendant was found guilty of committing outweigh the mitigating factors.” Id. at 416

(emphasis added).

It is true that Mapes relied on State v. Brooks, 661 N.E.2d 1030 (Ohio 1996), an Ohio

Supreme Court case decided during the time period between Davie’s direct appeal to the state

appellate court and his direct appeal to the state supreme court. But Brooks also involved an explicit

unanimity instruction like the one in Mapes, as did other cases discussing “acquittal-first”

instructions prior to February 18, 1997, the date on which Davie’s direct appeal to the Ohio Supreme

Court was submitted. See id. at 1040 (“You are now required to determine unanimously that the

death penalty is inappropriate before you can consider a life sentence.”) (emphasis added); see also

Kubat v. Thieret, 867 F.2d 351, 369 (7th Cir. 1989) (“If, after your deliberations, you unanimously

conclude that there is a sufficiently mitigating factor or factors to preclude the imposition of the

death sentence, you should sign the form which so indicates.”). Thus, even if could be argued that,

at the time of Davie’s direct appeal, a reasonable counsel should have raised the “acquittal-first”

issue based on the Mapes, Brooks, and Kubat cases, the jury instructions in those cases differed

significantly from the jury instructions present in this case. See Davis, 318 F.3d at 693-97 (Boggs,

J., dissenting) (distinguishing the instructions in that case from the instructions in Brooks and other

cases). Notably, shortly after the Brooks decision, the Ohio Supreme Court rejected the contention

that the doctrine applied to the non-explicit instructions given in Davis. See State v. Davis, 666

N.E.2d 1099, 1109 (Ohio 1996) (distinguishing Brooks); see also Henderson v. Collins, 262 F.3d

615, 622 (6th Cir. 2001) (noting that the Ohio Supreme Court’s decision in Davis required the

challenged instruction to be similar to the acquittal-first instruction struck down in Brooks before

reversal of a capital sentence is warranted); cf. Williams v. Coyle, 260 F.3d 684, 702 (6th Cir. 2001)

(rejecting Mills challenge to jury instructions similar to those in the instant case). It was not until

2003 that this court, on habeas, found that determination to be error. See Davis, 318 F.3d at 684-85.

Thus, given the state of the law existing at the time of Davie’s direct appeal, Davie’s

appellate counsel was not ineffective when he failed to argue that the penalty-phase jury instructions

in this case were unconstitutional under the “acquittal-first” doctrine. At the time of Davie’s appeal,

it simply was not clear that such non-explicit instructions could be considered constitutionally

infirm. Accordingly, the performance of Davie’s appellate counsel did not fall below an objective

standard of reasonableness when counsel failed to raise the claim on direct appeal. Therefore, the

state courts’ determination of this issue was not an unreasonable application of Strickland.

6

And, as discussed in Part III.C., infra, even in Davis, the jury instructions were more explicit than those at

issue in this case. See 318 F.3d at 685 (“[Y]ou must find that the State has failed to prove beyond a reasonable doubt

that the aggravating circumstances which the defendant was found guilty of committing outweigh the mitigating

factors.”).

No. 03-4293 Davie v. Mitchell Page 14

C.

Even if this court could properly ignore the procedural default in this case of Davie’s

underlying “acquittal-first” claim, that claim still would not warrant habeas relief. The only possible

justification for reaching the substantive “acquittal-first” claim would be the fact that the Ohio

appellate court actually determined—in the context of adjudicating Davie’s ineffective assistance

claim—that the underlying substantive claim lacked merit. This necessary reliance on the fact that

the state court decided the issue requires inexorably that AEDPA’s deferential standard of review

be applied to the state appellate court’s determination of that claim, which constitutes the last

reasoned determination on the issue. See Payne v. Bell, 418 F.3d 644, 660-61 (6th Cir. 2005);

Joseph v. Coyle, 469 F.3d 441, 450 (6th Cir. 2006). And where, as here, the state court “adjudicated

the claim but with little analysis on the substantive constitutional issue,” Vasquez v. Jones, 496 F.3d

564, 569 (6th Cir. 2007), we apply modified AEDPA deference. Under that standard, we conduct

“a ‘careful’ and ‘independent’ review of the record and applicable law, but cannot reverse ‘unless

the state court’s decision is contrary to or an unreasonable application of federal law.’” Id. at 570

(quoting Maldonado v. Wilson, 416 F.3d 470, 476 (6th Cir. 2005)). The proper inquiry here is again

whether the state court’s disposition of the claim was an unreasonable application of clearly

established federal law, as determined by the Supreme Court. See 28 U.S.C. § 2254(d)(1).

Though the Mapes and Brooks decisions had been decided by 2001, those cases, as

explained, involved explicit unanimity instructions. Reliance on the later extension of those cases

in Davis is unwarranted, considering that under AEDPA, we must look only to the Supreme Court

holdings “as of the time of the relevant state-court decision.” See Williams v. Taylor, 529 U.S. 362

(2000). See also Mason v. Mitchell, 320 F.3d 604, 614 (6th Cir. 2003). At the time of the relevant

state court decision in this case (2001), the most that can be said is that it was clearly established

federal law, under Mills, that instructions like the ones featured in Brooks and Mapes violated the

Constitution. For a state court not to anticipate the holdings of subsequent circuit cases dealing with

less explicit instructions can hardly amount to an unreasonable application of clearly established

Supreme Court law. This is especially so in light of the contemporaneous cases in this very circuit

that approved instructions similar to those in this case. See Henderson v. Collins, 262 F.3d 615, 622

(6th Cir. 2001). In an extensive advisory discussion of the case law in this circuit regarding

acquittal-first instructions, this court noted that the Mapes doctrine was “expanded” in Davis, and

recognized that certain cases in this circuit questioned the validity of Mapes and Davis. See Williams

v. Anderson, 460 F.3d 789, 810, 811 (6th Cir. 2006). Due to the lack of clarity in the law, and due

to this court’s not yet having expanded the Mapes doctrine, the state court’s decision in Davie’s case

appears not to have been an unreasonable one.

Because Davis itself was an AEDPA case, however, it is arguably inconsistent with the law

of the circuit to hold that a state court reasonably applied Supreme Court law by upholding an

instruction identical to the one in Davis. But in fact the instruction in Davie’s case was considerably

less objectionable than the instruction in Davis. The pertinent instruction in Davis told the jury that

“you must find that the State” failed to prove that aggravating factors outweigh mitigating factors.

Davis, 318 F.3d at 685. No such instruction is present in this case. Rather than employing the “you

must” language, the trial court in this case stated “[i]f, on the other hand, you’re not firmly

convinced” that aggravating factors outweigh mitigating factors, “then the State has not met its

burden of proof.” JA 1445-46. The trial court also later explained that “[o]n the other hand, if after

considering all of the evidence . . . you find that the State has failed to prove” that aggravating

factors outweigh mitigating factors “then you will return a verdict reflecting that decision.” JA

1456-57.

Although Davis did not include a Mapes-like command that the jury “must unanimously

find” that the state failed to prove that the aggravating factors outweighed the mitigating factors, the

court found it problematic that the jury was instructed that it “must” find that the government failed

No. 03-4293 Davie v. Mitchell Page 15

to prove that the aggravating factors outweighed the mitigating factors “immediately” prior to a

unanimity instruction that “all 12 of you must be in agreement.” Davis, 318 F.3d at 689. At Davie’s

sentencing, the court never instructed the jury that it “must find” that the government failed to prove

that the aggravating factors did not outweigh the mitigating factors. Rather, it stated that if “you’re

not firmly convinced . . . then the State has not met its burden of proof” and “if . . . you find that

the State has failed to prove by proof beyond a reasonable doubt, that the aggravating circumstances

which the Defendant, Roderick Davie, was found guilty of committing . . . outweigh the mitigating

factors, then you will return a verdict reflecting that decision.” JA 1445-46, 1456-57.

And while it is true that the trial court had explained that “[a]ll 12 jurors must agree on a

verdict” prior to the last of three times this language was used, JA 1456, that explanation took place

immediately before the court instructed that the jury must recommend death if it found that the

aggravating factors outweighed the mitigating factors. Approximately 70 words separated the

unanimity instruction and the acquittal instruction at issue in this case, and these words related to

finding that the aggravating factors outweighed the mitigating factors. Thus, if anything, the “12

jurors must agree” language affected the death sentence determination, and not the later instruction

regarding mitigating factors outweighing aggravating factors. Therefore, unlike Davis, the

unanimity instruction here did not take place “immediately” before or after the acquittal instruction

or the “in this event” instruction. Consequently, the instruction here did not “improperly imply that

only ‘in [the] event’ of acquittal, which had to be unanimous, could the jurors consider life,”

Williams, 460 F.3d at 812, in the way the instruction was held to do in Davis.

Davis is therefore not controlling. Under the law of the circuit as it then existed, as well as

under subsequent developments, the Ohio courts’ disposition of Davie’s objection to the jury

instructions was not an unreasonable application of Supreme Court law. Thus, even were the

substantive “acquittal-first” claim properly before this court, habeas relief would not be warranted.

IV.

Davie’s prosecutorial misconduct arguments are also without merit. The district court

properly analyzed these claims, see 291 F. Supp. 2d at 606-607, 617-20, and we adopt its reasoning

in that regard.

Davie alleges that during its closing arguments in the guilt phase of the trial, the prosecution

improperly denigrated him and his counsel. Setting aside the issue of the procedural default of this

claim and of Davie’s failure to object at trial to most of the allegedly improper comments, we cannot

grant habeas relief on this claim. Not only is the Ohio Supreme Court’s rejection of this claim

neither an unreasonable application of nor contrary to federal law, see 686 N.E.2d at 263, but we

agree with the district court that, even were we to review this claim independently, we would not

find that the comments in question rendered Davie’s trial fundamentally unfair. See 291 F. Supp.

2d at 607.

Likewise, Davie’s contention that the prosecution improperly commented on the failure of

a defense expert to testify does not merit relief. Without even considering procedural default, Davie

still makes no showing that the Ohio Supreme Court’s rejection of this claim was an unreasonable

application of federal law, see 686 N.E.2d at 264, and the comments did not render the trial

fundamentally unfair. See 291 F. Supp. 2d at 607.

No. 03-4293 Davie v. Mitchell Page 16

Finally, Davie argues that certain statements in the prosecution’s penalty-phase closing

argument were improper. We again agree with the district court that, even if this claim is not

defaulted, the Ohio Supreme Court did not unreasonably apply federal law in rejecting this claim,

see 686 N.E.2d at 263, and we would independently conclude that “[e]ven if all the statements were

improper, they did not so infect the trial” with unfairness as “to make the resulting conviction a

denial of due process.” 291 F. Supp. 2d at 619-20.

Davie’s prosecutorial misconduct claims do not warrant habeas relief.

V.

For the foregoing reasons, we affirm the judgment of the district court.

No. 03-4293 Davie v. Mitchell Page 17

____________________

CONCURRENCE

____________________

R. GUY COLE, JR., Circuit Judge, concurring.

I.

The Supreme Court has noted that:

[e]xpanded concepts of fairness in obtaining confessions have been accompanied by

a correspondingly greater complexity in determining whether an accused’s will has

been overborne[—]facts are frequently disputed, questions of credibility are often

crucial, and inferences to be drawn from established facts are often determinative.

The overall determination of the voluntariness of a confession has thus become an

exceedingly sensitive task, one that requires facing the issue squarely, in illuminating

isolation and unbeclouded by other issues and the effect of extraneous but prejudicial

evidence.

Jackson v. Denno, 378 U.S. 368, 390-91 (1964) (internal citations omitted). This case, which turns

on the facts surrounding Davie’s confession, is a perfect example of this complexity. After much

deliberation, I concur in the lead opinion’s conclusion that Davie’s appeal does not warrant habeas

relief.

II. BACKGROUND

Because Davie filed his habeas petition after the passage of the Antiterrorism and Effective

Death Penalty Act of 1996 (“AEDPA”), Pub. L. No. 104-132, 110 Stat. 1214, we review his claims

to determine whether the “state court’s application of clearly established federal law was objectively

unreasonable.” Williams v. Taylor, 529 U.S. 362, 409 (2000). In so doing, we rely on the Ohio

Supreme Court’s determination of the facts as set forth in State v. Davie, 686 N.E.2d 245 (Ohio

1997). Further, we apply AEDPA deference to the state courts’ determinations regarding the merits

of the claim, but we review de novo all issues not reached by the state courts. Williams v. Anderson,

460 F.3d 789, 804 (6th Cir. 2006).

Given the long procedural history of this case and the thorough factual background set forth

in the 1997 Ohio Supreme Court opinion, I will not rehash the details of Davie’s crimes, but the

relevant facts surrounding Davie’s confession follow.

A. Davie’s Confession

1. 8:30 a.m. - The Arrest

At 8:30 a.m. on the day of the VCA murders, the Warren Municipal Court chief bailiff, Carl

Miller, received a phone call from Dwayne “Styx” Thomas, an informant who identified Davie as

the individual responsible for the crimes. Miller and the Warren Police Captain, Timothy Downs,

proceeded to the address Styx had given them, where they arrested Davie and advised him of his

Miranda rights. Davie acknowledged his understanding of the rights, but he refused to sign a waiver

of those rights.

No. 03-4293 Davie v. Mitchell Page 18

2. 9:05 a.m. - The Initial Questioning

Upon arriving at the police station at approximately 9:05 a.m., Captain Downs placed Davie

in an interrogation room and asked Lt. Carl Blevins to question him. Blevins and Detective Morris

Hill entered the interrogation room and re-read Davie his Miranda rights. The officers showed him

a written form presenting those rights. Davie initialed the form on each line, indicating he

understood his rights, but, again, refused to sign the waiver. At that point, the officers performed

an atomic absorption test on Davie’s hands, but they did not question him further. Davie neither

requested an attorney nor invoked his right to remain silent.

3. 9:59 a.m. - The Second Interrogation

At 9:59 a.m., Downs and Blevins re-entered the interrogation room, informed Davie that they

would be recording the interview, and read Davie his Miranda rights again. For a third time, Davie

indicated that he understood his rights. This time, however, he informed the officers that he did not

want to make a statement:

Blevins: Do you not wish to make a statement or anything at this time.

Davie: Doesn’t matter to me.

Blevins: I heard you refuse.

Davie: I didn’t refuse[;] you said I didn’t have to if I didn’t want to.

Blevins: Do you wish to make a statement yes or no.

Davie: No statement.

Blevins: You wish not to make a statement.

Davie: Right.

Blevins. Okay that’s fine . . . this interview is now completed . . . .

(Joint Appendix (“JA”) 2018-20, partial transcript of taped interview with Davie at 9:59 on June 27,

1991.) At that point, the officers ended the interview and transported Davie to a jail cell. Davie

never asked to speak to an attorney.

Shortly after the officers had finished the second interrogation, Detective Sines called the

Trumbull County Prosecutor, Dennis Watkins, to ask him for his legal advice on how the officers

could proceed in questioning Davie, if at all. The prosecutor advised Sines that “as long as Davie

did not refuse to speak and did not demand an attorney, the officers could talk to him, provided that

Davie acknowledged that he understood his rights.” Davie, 686 N.E.2d at 256.

4. 12:15 p.m. - The Third Interrogation

Given Watkins’s advice, at approximately 12:15 p.m., Detective Sines and Detective

Sergeant Gary Vingle requested that Davie be brought from his jail cell for interrogation. Davie

agreed to talk to the officers and was escorted to the interrogation room. There, the officers re-

advised him of his Miranda rights and told him that the interview would be recorded. Davie again

initialed each sentence of the constitutional rights form except for the waiver of rights and indicated

that he understood. As before, Davie did not request a lawyer and willingly spoke to the detectives.

No. 03-4293 Davie v. Mitchell Page 19

The following exchange then occurred:

Sines: Do you want to sign your name here that you understand that?

Davie: Well I’m not signing the waiver of rights. I didn’t sign it earlier.

Sines: Okay, okay. You can take it, go ahead. He didn’t sign it.

Vingle: Would you be willing to answer some of our questions if we ask you

some, you know you [sic]?

Davie: Yes.

(JA 2021.) As the officers proceeded with the interview, Davie told them that although he did not

remember being around the VCA that morning, he remembered having his gun with him. He then

described the gun and informed them that he always carried one. When, at about 12:35 p.m., Davie

told the officers he could not remember anything else about the incident and no longer wished to

speak with them, the officers terminated the interview and Davie was returned to his jail cell.

5. 2:00 p.m. - The Confession

At 2:00 p.m. that same afternoon, Sergeant Massucci went to the cell to take photographs

of Davie. Davie asked Massucci if he could make a phone call, and Massucci granted his request.

Davie called his girlfriend, Sonya Barnes, who apparently told him that she and Davie were being

discussed in the local media. When Davie went back to his cell, he told Massucci that he wanted

to talk to Vingle to discuss what was being released to the media and to determine what information

Styx had given the police that morning.

Davie was subsequently brought from his cell to the interrogation room where Vingle and

Sines re-advised him of his Miranda rights. For a third time, Davie initialed a constitutional rights

form provided by the officers, indicating that he understood his rights, and signed the form.

Although Davie once again refused to sign the waiver, he explicitly stated that he agreed to talk to

the officers, and he did not ask to speak to an attorney.

Vingle: Do you want to acknowledge this that you have been given your

rights again? Do you understand this one too, do you want to initial

that one?

Davie: It don’t matter, do it.

Sines: Any particular reason why, you just don’t want to initial that part?

Davie: Right.

Sines: Are you still willing to talk to us?

Davie: Right.

Sines: Okay.

Vingle: Okay, this has been building up?

Davie: I don’t know, I just flipped out this morning.

Vingle: Tell us what happened, tell us.

No. 03-4293 Davie v. Mitchell Page 20

Davie: I mean, it’s evident what happened.

Sines: We have an idea what happened but we would like to hear from you

what happened, just to verify what we got.

Davie: I went down to the VCA and shot ‘em up.

(JA at 866-67.) Davie then asked the officers to type up his statement because he did not want to

have to confess again. Once the tape was transcribed, Davie signed or initialed each page of the

transcript.

On a motion to suppress filed by Davie’s appointed counsel, the trial court found Davie’s

2:00 p.m. confession to be admissible. The court reasoned that despite Davie’s failure to initial the

waiver-of-rights portion of the form, he had impliedly waived his right to remain silent during both

the 12:15 p.m. and the 2:00 p.m. interrogations, and that Davie had initiated the 2:00 p.m.

interrogation that ultimately led to his confession. Davie, 686 N.E.2d at 256-57.

III. ANALYSIS

Despite some misgivings surrounding the somewhat questionable police conduct at issue in

the case, I join in the lead opinion’s conclusion that the trial court did not err in admitting Davie’s

confession. Though the officers questioned Davie four separate times over the course of

approximately six hours, the trial court correctly determined that they respected Davie’s rights under

Miranda, Mosley, Edwards, and their progeny. Further, I agree with the lead opinion’s conclusion

that Davie himself initiated the 2:00 p.m. interrogation during which he ultimately confessed.

A. Voluntariness

The test for the voluntariness of a defendant’s confession is whether, under the totality of the

circumstances, the government obtained a statement by coercion or improper inducement. Haynes

v. Washington, 373 U.S. 503 (1963). A factual inquiry into the voluntariness of the statement should

focus on the conduct of the law enforcement officers involved. Mincey v. Arizona, 437 U.S. 385

(1978).

In Michigan v. Mosley, 423 U.S. 96, 104 (1975), the Supreme Court clarified that the

admissibility of statements obtained after a person in custody decides to remain silent depends on

whether the police “scrupulously honored” his right to cut off questioning should they renew

interrogation. Mosley requires an examination of whether the officers’ conduct demonstrates a

failure to respect the defendant’s right to end questioning, thereby indicating an “effort [] to wear

down [the defendant’s] resistance and make him change his mind,” id. at 105-06, and prescribes

several factors relevant to the determination: (1) the amount of time that lapsed between

interrogations; (2) the scope of the second interrogation; (3) whether new Miranda warnings were

given; and (4) the degree to which police officers pursued further interrogation once the suspect

invoked his right to silence. Id. Although these factors are not intended to be a per se test, courts

use them in considering whether, in the totality of the circumstances, admission of a defendant’s

incriminating statements violates Miranda. Id. at 103-05. In Edwards v. Arizona, 451 U.S. 477, 485

(1984), the Supreme Court added another aspect to the analysis, holding that if an accused requests

counsel, the police must cease all questioning “unless the accused himself initiates further

communication, exchanges or conversations with [them].”

Viewing the facts through the lens of the Mosley factors, I agree that the officers questioning

Davie honored his right to remain silent. The police re-Mirandized Davie before each of the four

interrogations, including the interrogation in which Davie ultimately confessed. Moreover, during

the 9:05 a.m., 12:15 p.m. and 2:00 p.m. interrogations, Davie initialed and signed a form indicating

No. 03-4293 Davie v. Mitchell Page 21

that he understood his rights. Further, Davie never asked for an attorney, and the transcripts

demonstrate that the police stopped questioning him when he refused to make a statement.

Though the dissent argues that the officers did not wait long enough between their

interrogations, I find that the timing was not unreasonable under the circumstances.1 Although only

about five hours passed between the first, second, and third interrogations, “[t]he courts have

generally rejected a per se rule as to when a suspect must be re[-]advised of his rights after the

passage of time or a change in questioners . . . . In fact, a number of circuits have ruled that re-

warning is not required simply because time has elapsed.” United States v. Weekley, 130 F.3d 747,

751 (6th Cir. 1997); Evans v. McCotter, 790 F.2d 1232, 1237-38 (5th Cir. 1986) (defendant

voluntarily waived his rights where he was twice advised of his rights over the course of a three-

hour period, notwithstanding a change in interview locations). Where the officers consistently read

Davie his rights prior to interrogating him and in all instances, respected Davie’s request to end the

questioning, the officers were not acting outside the bounds of what have been deemed appropriate

methods of interrogation. Further, Davie’s case is wholly incomparable to the types of extreme

physical and psychological coercion suffered by other defendants. Compare Beecher v. Alabama,

389 U.S. 35, 38 (1967) (holding confession to be involuntary where officers already having

wounded the defendant, ordered defendant at gunpoint to confess or be killed), Davis v. North

Carolina, 384 U.S. 737, 745-47 (1966) (confession found involuntary where officers interrogated

the defendant over sixteen days and held him incommunicado in a closed cell without windows and

with limited food), and United States v. Anderson, 929 F.2d 96, 100 (2d Cir. 1991) (confession

coerced when officers told suspect he could either have an attorney present during questioning or

cooperate with the government).

The fact that the officers focused each of their interrogations on the issue of what occurred

at the VCA does not change my analysis because “a second interrogation is not rendered

unconstitutional simply because it involves the same subject matter discussed during the first

interview.” United States v. House, 939 F.2d 659, 662 (8th Cir. 1991); see also Hatley v. Lockhart,

990 F.2d 774 (8th Cir.1993) (the fact that a second interrogation of defendant involved the same

subject matter as the first did not violate defendant’s rights where there was no effort to wear down

the resistance, and the police had not re-contacted him with the sole purpose of trying to induce him

to abandon his earlier silence); United States v. Hsu, 852 F.2d 407, 412 (9th Cir. 1988) (questioning

defendant about the same crime does not of itself prove bad faith or undue pressure on the part of

the police); but see Charles v. Smith, 894 F.2d 718, 726 (5th Cir. 1990) (Mosley violated where same

officer questioned defendant about same crime “just a few minutes after” he had invoked his right

to silence). Moreover, as to the actual confession, a defendant can waive an invocation of his earlier

right to remain silent by subsequently making a voluntary statement to the police. See, e.g., North

Carolina v. Butler, 441 U.S. 369, 374-75 (1979) (waiver may be inferred from particular facts and

circumstances surrounding the case); United States v. Kaufman, 92 Fed. App’x 253, 255-56 (6th Cir.

2004) (no Miranda violation where defendant refused to sign a waiver form but freely spoke to the

police after being advised of his Miranda rights); United States v. Miggins, 302 F.3d 384, 397 (6th

Cir. 2002) (written waiver unnecessary to establish knowing, intelligent and voluntary waiver of

Miranda rights); Henderson v. Singletary, 968 F.2d 1070, 1073-74 (11th Cir. 1992) (finding that

officer’s three separate attempts to clarify whether a defendant intended to cut off questioning did

not violate the defendant’s constitutional rights).

1

I believe that the short passage of time between the 9:05 a.m. and the 9:59 a.m. interrogations is counter-

balanced by the fact that the officers re-read Davie his Miranda rights and immediately ended the interrogations

following Davie’s requests. Moreover, other courts have found the passage of even shorter periods to have been

reasonable in the face of the other Mosley factors. See United States ex rel. Patton v. Theiret, 791 F.2d 543, 547-48 (7th

Cir. 1986) (finding that the passage of forty minutes does not require that the police re-Mirandize defendant); Mills v.

Commonwealth of Kentucky, 996 S.W.2d 473, 480-83 (Ky. 1999) (10-20 minute interval between interrogations

“concerned” the court, but was found long enough under the circumstances).

No. 03-4293 Davie v. Mitchell Page 22

Finally, Davie’s personal characteristics—including his age, education, intelligence, and

prior experience with the police—all point to a voluntary confession. See Jackson v. McKee, 525

F.3d 430, 434 (6th Cir. 2008) (citing Schneckloth v. Bustamonte, 412 U.S. 218, 226 (1973)). Davie

grew up in a relatively stable and supportive home environment, attended school until his expulsion

at age sixteen, and, though he has some cognitive and psychological problems, he was unaffected

by any severe mental deficiencies. Davie, 686 N.E.2d at 265-66.

It is notable, moreover, that Sines contacted the county prosecutor to ensure that his

questioning of Davie was within the bounds of the law. I do not share the dissent’s view that the

phone call to the prosecutor evidences an effort by Sines to ignore Davie’s refusal to waive his rights

in order to continue the interrogation. On the contrary, I view the call as an indication that Sines

was conscious of not overstepping Davie’s rights by continuing to question Davie after his refusals

to waive his rights during the first and second interrogations. Sines clearly knew that a thin line

exists between proper questioning of defendants and coercive tactics, and I believe, absent evidence

to the contrary, that he was taking steps to guarantee that he did not cross that line.

B. Initiation

Davie’s assertion that his statements were involuntary is further undermined by the fact that

he—not the officers—initiated the 2:00 p.m. encounter during which he ultimately confessed. This

Court has determined that “initiation occurs when, without influence by the authorities, the suspect

shows a willingness and a desire to talk generally about his case.” United States v. Whaley, 13 F.3d

963, 966-67 (6th Cir. 1994) (citing Oregon v. Bradshaw, 462 U.S. 1039 (1983) (holding that a

defendant can negate his earlier invocation of his Miranda rights by initiating a conversation)).

Moreover, some courts have found that the requirement that a “significant period” of time pass

between a defendant’s invocation of his right to silence and a second round of questioning is not

applicable to a situation in which the police discontinue questioning and the defendant subsequently

initiates a confession. See, e.g., Henderson, 968 F.2d at 1071 (“It does not make sense to apply the

same time standard to situations in which the defendant controls the time period between the end

of police questioning and the start of a defendant-initiated confession.”); United States v. Alexander,

447 F.3d 1290, 1294 (10th Cir. 2006) (Mosley time limits inapplicable “if the suspect, and not the

police, reinitiates contact and agrees to questioning”).

The facts suggest that Vingle interrogated Davie at 2:00 p.m. because Davie wanted to talk.

Around 2:00 p.m., when Massucci was photographing Davie in his cell, Davie asked Massucci if

he could make a phone call, a request Massucci granted. In talking to Barnes, Davie apparently

learned that the media was covering the morning’s events occurring at the VCA, and at that point,

he requested to meet with Vingle. Vingle complied, the officers re-Mirandized Davie, and Davie

confessed. Nothing about this encounter leads me to conclude that the police broke Davie’s will to

force his ultimate confession.

C. Conclusion

The principle that a person’s rights are violated when police coerce an involuntary

confession from him, truthful or otherwise, through physical or psychological methods designed to

overbear his will is fundamental to our justice system. See Blackburn v. Alabama, 361 U.S. 199,

206 (1960) (“coercion can be mental as well as physical . . . the blood of the accused is not the only

hallmark of an unconstitutional inquisition”). Based on this principle, the Supreme Court has long

held that certain interrogation techniques, either in isolation or as applied to the unique

characteristics of a particular suspect, are so offensive to a civilized system of justice that they must

be condemned under the Due Process Clause of the Fourteenth Amendment. See Brown v.

Mississippi, 297 U.S. 278, 286-87 (1936). Though the police’s continual questioning of Davie may

toe the line of what is reasonable behavior by law enforcement, I agree that the trial court’s decision

No. 03-4293 Davie v. Mitchell Page 23

to admit his confession at trial was reasonable under the circumstances and find that an affirmance

of the district court’s denial of habeas is appropriate here.

No. 03-4293 Davie v. Mitchell Page 24

________________

DISSENT

________________

MERRITT, Circuit Judge, dissenting. The majority in this case is reading the AEDPA

statute unlawfully to suspend the writ of habeas corpus in violation of the Suspension Clause of the

United States Constitution, Article I, § 9 (“The Privilege of the Writ of Habeas Corpus shall not be

suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it.”). Here,

as I shall explain below, the majority is using the AEDPA statute as a license to overrule Miranda

v. Arizona and its lineal progeny developed by the Warren-Brennan Court four decades ago to

outlaw coerced confessions that abridge the Sixth Amendment right to counsel and the Fifth

Amendment right against self-incrimination. The capital defendant invoked both his right to silence

and counsel to no avail before he was then enticed to confess.

I. Summary

Police officers on June 27, 1991, confronted petitioner Roderick Davie six times within a 5-

1/2 hour period between his arrest at 8:30 A.M. that morning and his confession around 2:00 P.M.

that afternoon. At none of these confrontations was he willing to sign a waiver of his rights to

silence and a lawyer. The time between the confrontation was in sequence 30 minutes, 45 minutes,

2 hours and 2 hours. At the first confrontation, when he was arrested, Davie was given his Miranda

warnings but he did not confess. At the second confrontation at 9:05 A.M., Davie was again

informed of his rights and asked to sign a waiver form. He refused, saying he “didn’t want to”

waive his right to remain silent and his right to the assistance of a lawyer.1 At 9:59 A.M., police

confronted Davie a third time and informed him of these rights yet again, to which he declined again

to sign the waiver form and stated unequivocally that he did not “wish to make a statement.” Two

hours later, at 12:15 P.M., a new team of police interrogators confronted Davie a fourth time and

read him his Miranda rights. He again exercised his right to silence and counsel by refusing to sign

the waiver form, after which he was asked a number of questions to which he finally answered that

he had “nothing to tell” the police. The fifth confrontation occurred 1-1/2 hours later when police

sent a detective as a photographer to take pictures of Davie in his cell (rather than at the booking

desk). A conversation ensued between the detective and Davie, and Davie asked if he could talk to

a police officer. The sixth confrontation immediately followed in which Davie again refused to sign

the waiver form but asked the officer how the news media had obtained particular information.

Davie initiated the conversation only to ask a question. Instead of answering Davie’s questions, the

officer turned the question around and began to interrogate Davie again. In answer to this

interrogation at the sixth encounter, Davie then briefly confessed to the murders (“I went there and

shot them up.”). At that time, the officer again advised Davie of his Miranda rights and Davie gave

a full, detailed, taped confession. The consistent, express refusal each time to sign the waiver of

these two fundamental rights at the request of the police officers should have put the officers on

notice that their persistent requests for a formal, pen-to-paper relinquishment of these rights would

1

The waiver of rights form that Davie refused to sign stated:

I have read this statement of my Constitutional Rights and understand what my rights are. I am

willing to make a statement and answer questions. I do not want a Lawyer at this time. I understand

and know what I an [sic] doing. No promises or threats have been used against me. I therefore waive

my rights and agree to make a statement.

Davie signed each constitutional right as the police officer read it to him, thereby indicating that he understood the right;

but he refused to sign the wavier while stating verbally that he would not waive those rights, thereby conveying the

message to the police that he understood his rights and was exercising his rights by refusing to waive them. He thus

refused by these actions to waive his right to remain silent and his right to the assistance of a lawyer.

No. 03-4293 Davie v. Mitchell Page 25

cause a reasonable person to believe that his signature was necessary in order to make a “knowing

and intelligent waiver of fundamental rights,” as required by Johnson v. Zerbst, 304 U.S. 458, 468

(1938) (in order for a constitutional right to be “properly waived” the accused must act “competently

and intelligently).

The jury returned a death verdict on March 19, 1992, which was upheld on direct appeal on

December 27, 1995, in an unreported opinion by the Ohio Court of Appeals and then by the Ohio

Supreme Court on November 26, 1997, State of Ohio v. Davie, 80 Ohio St. 3d 311, 686 N.E.2d 245.

The Ohio Supreme Court held the confession admissible because Davie’s earlier multiple exercises

of his right to remain silent “did not preclude a later interrogation by other officers” within two

hours because Davie “initiated the conversation himself.” 686 N.E.2d at 257. In the fifth

confrontation, Davie had only asked a question of the police photographer who was sent to his cell

and then of another officer in the sixth encounter that immediately followed. The police did not

“scrupulously honor” his previous exercise of his rights when they again began to ask him questions

rather than simply reply to his question. Such police conduct violated the Miranda standard against

“persisting in repeated efforts to wear down resistance and make him change his mind,” after

exercising his Fifth and Sixth Amendment rights by refusing to execute the waiver form four times

since 8:30 A.M. that morning and expressly stating three times that he did not want to give a

statement.

II. The Facts Respecting the Interrogations and the Confession

Petitioner Roderick Davie was employed by Veterinary Companies of America, a pet food

and supplies distributor in Warren, Ohio, as a warehouse worker until he was fired in April of 1991.

On the morning of June 27, 1991, Davie arrived at the company warehouse and within minutes shot

William Everett and John Coleman, two truck drivers with the company, and assaulted Tracey

Jefferys, a secretary at the company. Coleman and Jefferys died at the scene, but Everett survived

despite being shot multiple times.

Around 8:30 A.M. that morning, authorities received a phone call from Dwayne Thomas,

known as “Styx,” indicating that he had information about the murders at the Veterinary Companies

of America. Thomas, known as an informant to local authorities, indicated that he was with the

perpetrator, Davie. The police found Davie at home, where he was first advised of his Miranda

rights but did not waive those rights. He was arrested and brought directly to an interview at the

police station for interrogation.

A few minutes later, at about 9:05 A.M., Lieutenant Blevins and Detective Hill read Davie

his rights and gave him a Warren Police Department form with the heading “YOUR

CONSTITUTIONAL RIGHTS” at the top followed by the standard Miranda warning broken down

line-by-line with space to initial that he understood each right. The section labeled “WAIVER OF

RIGHTS” states:

I have read this statement of my Constitutional Rights, and understand what my

rights are. I am willing to make a statement and answer questions. I do not want a

Lawyer at this time. I understand and know what I an [sic] doing. No promises of

threats have been used against me. I, therefore, waive my rights and agree to make

a statement.

(J.A. at 2017.) Davie initialed the lines on the standard form saying he understood his rights. He

refused to initial the waiver portion of the form and told Blevins and Hill “he didn’t want to” sign

the form or talk. (J.A. at 688. Testimony of Lt. Blevins.) An officer wrote on the form that Davie

“Refused to sign” the form. (J.A. at 2017.) The record does not indicate who wrote it. Lieutenant

Blevins performed an atomic absorption analysis on Davie’s hands looking for the presence of

No. 03-4293 Davie v. Mitchell Page 26

gunpowder. The officers did not attempt to question Davie further but told him they would return

later to question him about the same crime.

At 9:59 A.M., less than an hour later, Blevins and Hill confronted Davie a third time in the

interview room to question him about the murders. They informed Davie that they were going to

record the interview. They again read Davie his rights and asked him if he understood them. He

replied yes. Despite Davie’s refusal to waive his rights, the officers began to question him, first

asking him if he knew why he was “down here.” Davie answered no. Nevertheless, as if he had

never asserted his Miranda rights, the officers told him that they were investigating a shooting on

Main Street that occurred earlier that morning and asked him if he had any knowledge of it. Davie

responded that he remembered “some things,” including that he “had a gun earlier.”

Blevins then acknowledged on the tape that he was aware that Davie had not waived his

rights. But the following exchange occurred:

Blevins: Do you not wish to make a statement or anything at this time.

Davie: Doesn’t matter to me.

Blevins: I heard you refuse.

Davie: I didn’t refuse you said I didn’t have to if I didn’t want to.

Blevins: [D]o you wish to make a statement yes or no.

Davie: No statement.

Blevins: You wish not to make a statement.

Davie: Right.

Blevins: Okay that’s fine . . . this interview is now completed . . . .

(J.A. at 2018-20, partial transcript of taped interview with Davie at 9:59 on June 27, 1991.)

At the suppression hearing Blevins testified that when he returned to the interview room at

9:59 A.M., he had “forgotten” that Davie refused to waive his rights less than an hour earlier. (J.A.

at 717.) Blevins’ testimony was unequivocal: “If [Davie] wasn’t going to initial it [the waiver

portion of the form], then I wasn’t going to talk to him. . . . I believe that he should initial that . . .

to give a statement.” When asked if he believed he had to have an express waiver, he answered,

“That’s correct.” (J.A. at 697, 724-25.) The trial court suppressed the statements made by Davie

at the 9:59 interview.

At the suppression hearing, Blevins also testified that at the conclusion of the 9:59 A.M.

interview, he conferred with Detective Sines about Davie’s failure to sign the waiver portion of the

form. Blevins did not play the tape for Sines, but Blevins specifically and unequivocally testified

that he told Sines that the interview was terminated because Davie refused to sign the waiver of

rights and because Davie expressly stated that he did not wish to make a statement. (J.A. at 726.)

After the 9:59 A.M. interview, the first team of investigators ceased interacting with Davie, having

never obtained a confession or waiver. Detective Sines then replaced Blevins and Hill and

commenced a fourth effort to get Davie to confess.

Detective Sines testified at the suppression hearing that Lieutenant Blevins and Detective

Hill informed him that Davie refused to initial the waiver portion of the form. Contrary to Blevins’

clear testimony that Blevins explicitly told Sines that Davie had expressly refused to talk, Sines

testified that he “did not remember” hearing that Davie had expressly stated that he did not want to

make a statement. Sines also testified that he made no effort to review the tape of the 9:59 A.M.

interview. (J.A. at 790.)

Detective Sines testified that he called Trumball County Prosecutor Dennis Watkins for

advice about how to get Davie to talk to the police. Sines testified that he was not “aware” that

No. 03-4293 Davie v. Mitchell Page 27

Davie had said at the 9:59 A.M. interview that he did not want to make a statement, and so Sines

did not tell the prosecutor that Davie had stated a few minutes earlier that he did not want to talk.

Sines testified that “[Watkins’] advice to me was as long as he [Davie] did not demand an attorney

present at the time, and as long as he acknowledged that he understands his Constitutional rights,

that he could talk with him, as long as he volunteered or would talk with us.” (J.A. at 740.) Despite

Davie’s refusal to waive his right to a lawyer and his declaration to the police that he did not want

to talk, Sines interpreted this advice as allowing the police to interrogate Davie once again. (J.A.

at 793.)

Detective Sines, accompanied by Detective Vingle, then went down to the jail area about

12:15 P.M. for a fourth interrogation of Davie. Again, both Sines and Vingle denied that they knew

that Davie had verbally refused to make a statement at the 9:59 A.M. interview, and they

acknowledged that they had not reviewed the tape from that interview. (J.A. at 871.) They testified

that they only knew Davie had refused to sign the waiver portion of the form. Consequently, two

hours after Davie first refused to waive the assistance of counsel or talk, the police again proceeded

to interrogate Davie. Davie, who agreed to the officer’s request that he speak with them, was

advised that the interview was going to be taped. The 12:15 P.M. interview started with Sines

saying, “I’m Detective Sines and Detective Vingle and we will advise you of your rights, we want

to talk to you a little bit. If you have something to tell us, we’ll listen to you. If you have nothing

to tell us then we’ll go from there okay.” Vingle says, “Okay Rod before we ask you any questions

you might understand your rights. Do you understand that right?” Although it is not clear what

“right” Vingle was referring to, Davie answered “Yes.” Vingle then proceeded to read the entire

Miranda warning and the waiver portion of the form aloud. Davie indicated that he understood

both. The officers did not inform Davie that if he did not want to talk the interview would cease;

instead they said, “If you have nothing to tell us then we’ll go from there okay.” They showed

Davie a new copy of the Warren Police Department form with the waiver of constitutional rights that

Davie had previously declined to sign. The form is timed at 12:15 P.M. and signed by Officers

Vingle and Sines. (J.A. at 2021.) The following exchange occurred:

Sines: Do you want to sign your name here that you understand that?

Davie: Well, I’m not signing the waiver of rights. I didn’t sign it earlier.

Sines: Okay, okay. You can take it, go ahead. He didn’t sign it.

Vingle: Would you be willing to agree to answer some of our questions if we

ask you some, you know you?

Davie: Yes.

Detective Vingle proceeded to ask Davie general questions about his employment history, before

returning to the issue of the waiver.

Sines: Roderick on this rights sheet that you signed, you acknowledged that

you understood your rights there, but you didn’t want to uh initial the

waiver of rights, okay, is that correct?

Davie: Right.

Sines: Okay being as though you did that do you have any objections to

talking to us anyhow.

Davie: No I don’t.

Sines then asked what happened at the Veterinary Companies of America that morning. Davie

responded “I don’t remember anything.” Davie, in response to further questioning, stated that he

did not remember being at the Veterinary Companies of America that morning, but that he knew he

had his gun with him that morning. He described the gun and said that he always carried his gun.

After more conversation and offers to get him a soft drink and a cigarette, the officers asked Davie

about a gun that Sines had with him. Davie stated, “Just like I told you, I don’t remember anything.

No. 03-4293 Davie v. Mitchell Page 28

I remember waking up this morning and everything is a blank.” When asked if he remembered

being at the Veterinary Companies of America that morning, Davie again responded, “No I don’t.

If I was it’s a total blank to me.”

The tape was turned off for three minutes at 12:27 P.M. Both Vingle and Sines testified that

they left the room, but neither could remember what they talked about outside the room. The

officers then returned and resumed the questioning.

Sines: Okay, one, one more time, this is for the record Roderick, um, you

don’t remember anything after you got up and watched t.v. until Carl

[Blevins] came [to arrest you]?

Davie: No I don’t.

Sines: You don’t have nothing else to say about what we’re talking about?

I’m in the blue about the picture.

Davie: I mean I can’t really, you know tell you anything now I don’t know

anything about.

Sines: Okay, okay you have nothing to tell us at this time about what we’re

asking you about?

Davie: No.

Sines concluded the interview at 12:35 P.M. The above statement was admitted at Davie’s capital

trial.

At 2:00 P.M., another encounter began when Detective Massucci was sent to take pictures

of Davie in his cell. Davie asked if he could make a phone call. Massucci said yes, and when Davie

returned he told Massucci he wanted to talk to Detective Vingle. Massucci found Vingle and told

him Davie wanted to see him. Vingle went down to the jail, and took Davie into the jailer’s room

to ask him what he wanted. Vingle testified that Davie wanted to know how the news media got so

much information about him and his girlfriend. Vingle said he had no control over what the news

media gathered. Then Davie asked him “What did Styx tell you?” Instead of answering, Vingle

asked, “What did you tell Styx?” Davie replied, “I went there and shot them up.” Vingle testified

that he then told Davie that they needed to go upstairs to the interrogation room, where Davie would

be formally advised of his rights again. Davie agreed, and Vingle took him upstairs. (J.A. at 866-

67.) The following exchange occurred:

Sines: Roderick I understand you want to talk to us some more.

Davie: There’s not much to talk about. I mean, I done it.

Vingle: Well, wait a minute, before we get into that Roderick I’m going to

readvise you, okay.

Davie: I can understand all that.

[Davie is readvised of his rights and states that he understands his rights.

Vingle then reads the waiver portion of the form and asks Davie if he understands

that. Davie answers “Right.”]

Vingle: Do you want to acknowledge this that you have been given your rights

again? Do you understand this one too, do you want to initial that one?

Davie: It don’t matter, do it.

Sines: Any particular reason why, you just don’t want to initial that part?

Davie: Right.

Sines: Are you still willing to talk to us?

Davie: Right.

Sines: Okay.

Vingle: Okay, this has been building up?

Davie: I don’t know, I just flipped out this morning.

No. 03-4293 Davie v. Mitchell Page 29

Vingle: Tell us what happened, tell us.

Davie: I mean, it’s evident what happened.

Sines: We have an idea what happened but we would like to hear it from

you what happened, just to verify what we got.

Davie: I went down to the VCA and shot ‘em up.

Davie then proceeded to talk more about the murders and what he did after he left the scene. After

about 15 minutes, Davie refused to talk further. He told the officers to type up his statement off the

tape because he did not want to go through the confession again. (J.A. at 2074.) After the tape was

transcribed, Davie signed or initialed each page of the transcribed statement at the bottom. (J.A. at

2052-2062.) Davie’s initials acknowledged that he understood his constitutional rights, but he once

again refused to sign or initial the waiver portion of the form regarding his right to a lawyer and to

remain silent. (J.A. at 2051.)

Davie’s counsel, appointed afterward, moved to suppress all the statements he made to

police. The trial court held that there were no statements to suppress from the encounters at 8:30

A.M. or 9:05 A.M. and that the statement given at 9:59 A.M. must be suppressed because the

government had not shown that Davie waived his right to remain silent. The statements from the

12:15 P.M. and 2:00 P.M. interviews were admitted because the trial court found that Davie had

waived his rights by asking Vingle the question about “Styx.” The two confessions were admitted,

and Davie was convicted and received the death penalty. The District Court simply concluded that

the Ohio Supreme Court did not apply Supreme Court law in a way that was either “contrary to, or

an unreasonable application of, clearly established Federal law.” 291 F. Supp. at 597.

III. The Miranda and Mosley Rights Are Well-Established and Were

Abridged in This Case

The purpose of the Miranda decision was to safeguard the long-recognized right against “the

compulsion inherent in custodial surroundings”:

We have concluded that without proper safeguards, the process of in-custody

interrogation of persons suspected or accused of crime contains inherently

compelling pressures which work to undermine the individual’s will to resist and to

compel him to speak where he would not otherwise do so freely. In order to combat

these pressures and to permit a full opportunity to exercise the privilege against self-

incrimination, the accused must be adequately and effectively apprised of his rights

and the exercise of those rights must be fully honored.

Miranda, 384 U.S. at 467 (emphasis added).

Among the important protections established by Miranda is the “right to cut off

questioning,” Miranda v. Arizona, 384 U.S. 474, which serves as an essential check on “the coercive

pressures of the custodial setting” by enabling the suspect to “control the time at which questioning

occurs, the subject discussed, and the duration of the interrogation,” Mosley v. Michigan, 423 U.S.

at 96, 103-04 (1975). This right is a “critical safeguard” of the Fifth and Sixth Amendment

privileges, Mosley, 423 U.S. at 103, and requires the police immediately to cease interrogating a

suspect if he “indicates in any manner, at any time . . . during questioning, that he wishes to remain

silent.” Miranda, 384 U.S. at 473-74 (emphasis added); Mosley, 423 U.S. at 100-02. The rule

requiring termination of questioning upon an accused’s invocation of his right to silence prevents

police from “persisting in repeated efforts to wear down [the accused’s] resistance and make him

change his mind.” Miranda, 384 U.S. at 473-74.

No. 03-4293 Davie v. Mitchell Page 30

Almost a decade after Miranda, in Michigan v. Mosley, 431 U.S. 96, 106 (1975), the

Supreme Court held that the admissibility of incriminating statements obtained after a person in

police custody has decided to remain silent and not answer questions depends upon whether his or

her right to cut off questioning was “scrupulously honored” by police. 423 U.S. at 104. The

rationale underlying the “scrupulously honored” rule in Mosley is the same as that in Miranda: it

is necessary because custodial interrogation by its very nature subtly compels individuals to

incriminate themselves. Miranda, 384 U.S. at 467 (concluding that “without proper safeguards the

process of in-custody interrogation of persons suspected or accused of crime contains inherently

compelling pressures which work to undermine the individual’s will to resist and to compel him to

speak where he would not otherwise do so freely”); Mosley, 423 U.S. at 103-04 (requirement that

police cease questioning after right to silence is invoked “counteracts the coercive pressures of the

custodial setting”).

In Mosley, the Supreme Court considered and severely limited when police could attempt

further questioning of a suspect who had previously asserted his right to remain silent. Mosley was

arrested on robbery charges and advised of his Miranda rights. After invoking his right to remain

silent, the arresting officer placed him in a detention cell. Approximately two hours later, another

officer came to interview the defendant about an unrelated homicide. He gave the suspect another

set of Miranda warnings, and during the course of the subsequent interrogation, Mosley made

incriminating statements. In reviewing the case in light of Miranda, the Court concluded that

Mosley’s invocation of his right to remain silent had been “scrupulously honored” because “[1] the

police . . . immediately ceased the interrogation, [2] resumed questioning only after the passage of

a significant period of time, and [a] the provision of a fresh set of warnings, and [b] restricted the

second interrogation to a crime that had not been a subject of the earlier interrogation.” Mosley, 423

U.S. at 106 (emphasis added). The Court noted that Miranda cannot “sensibly be read to create a

per se proscription of indefinite duration upon any further questioning by any police officer on any

subject, once the person in custody has indicated a desire to remain silent” because such a reading

could impermissibly create “a blanket prohibition against the taking of voluntary statements or a

permanent immunity from further interrogation.” Id. at 102-03 (emphasis added). The decisive fact

allowing new interrogation in Mosley was the fact that the accused was questioned about an entirely

different crime. That crucial fact justifying the new interrogation is not present in Davie’s case. He

was repeatedly questioned about the same crime.

In Mosley the Court explained that its mandate that “interrogation must cease” after a suspect

invokes his right to remain silent does not always permanently prevent the police form resuming

questioning. However, neither does the phrase mean — as occurred in this case — that questioning

can resume after a short “time out” or that police may try again (and again) to get the suspect to talk

to them or make a statement about the same criminal event. Mosley, 423 U.S. at 102. To allow

questioning on the same subject to resume after only a brief period would “clearly frustrate the

purpose of Miranda by allowing repeated rounds of questioning to undermine the will of the person

being questioned.” Id.

IV. The “Presumption Against Waiver” of the Fifth Amendment Right to Silence and the

Sixth Amendment Right to Counsel

The Supreme Court has set a high standard of proof for the waiver of constitutional rights,

a standard requiring that courts should “‘indulge every reasonable presumption against waiver’ of

fundamental constitutional rights.” Johnson v. Zerbst, 304 U.S. 458, 464 (1938). “The courts must

presume that a defendant did not waive his rights; the prosecution’s burden is great” to demonstrate

a valid waiver, North Carolina v. Butler, 441 U.S. 369, 373 (1979), and “[d]oubts must be resolved

in favor of protecting the constitutional claim.” Michigan v. Jackson, 475 U.S. 625, 633 (1986).

Where “the interrogation continues without the presence of an attorney and a statement is taken, a

heavy burden rests on the government to demonstrate that the defendant knowingly and intelligently

No. 03-4293 Davie v. Mitchell Page 31

waived his privilege against self-incrimination and his right to retained or appointed counsel.”

Miranda, 384 U.S. at 475.

Miranda holds that the defendant may waive the rights conveyed in the warnings “provided

the waiver is made voluntarily, knowingly and intelligently.” 384 U.S. at 475. The inquiry has two

distinct dimensions:

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. Only if the “totality of the circumstances surrounding the interrogation”

reveal both an uncoerced choice and the level of comprehension may a court properly

conclude that the Miranda rights have been waived.

Moran v. Burbine, 475 U.S. 412, 421 (1986) (emphasis added); see also North Carolina v. Butler,

441 U.S. 369, 374-375 (1979). Merely asking the accused whether he understands his rights does

not satisfy the duties of an interrogating officer or make admissible any statement of the accused.

Miranda requires the interrogating officer to go further and make sure that the accused, knowing his

rights, voluntarily relinquishes them. See United States v. Porter, 764 F.2d 1, 7 (1st Cir. 1985).

If the custodial suspect’s right to remain silent has not been “scrupulously honored”

throughout the custody, there generally cannot be any subsequent finding of waiver. See, e.g.,

United States v. Barone, 968 F.2d 1378 (1st Cir. 1992) (holding that under “Mosley, a court need

determine specifically whether there has been a voluntary waiver only after the government has

carried its burden of showing that it complied with [all of] the required procedures”) (emphasis

added); Vujosevic v. Rafferty, 844 F.2d 1023, 1028-31 (3d Cir. 1988) (holding that under Mosley,

the government failed to demonstrate a valid waiver when police did not “scrupulously honor” the

suspect’s invocation of his right to remain silent by reinterrogating him about the same crime).

Interpreting Miranda, the Supreme Court said in Smith v. Illinois, 469 U.S. 91, 98 (1984) (a

case in which the accused told his police interrogator that he did not want to talk or waive his right

to a lawyer): “an accused’s post-request responses to further interrogation may not be used to cast

retrospective doubt on the clarity of the initial request itself.” This principle has been followed in

many cases. A suspect’s claim that the police violated his right to silence by continuing to question

him is not negated by the fact that the suspect answered additional questions after the police failed

to “scrupulously honor” his request to cease questioning him. Police may not use “post-request”

responses “to cast retrospective doubt on the clarity” of the initial request. See, e.g., United States

v. Tyler, 164 F.3d 150, 154-55 (3d Cir. 1988) (the police command to Tyler to “tell the truth” after

Tyler invoked his right to remain silent is the “antithesis” of scrupulously honoring his right to

remain silent); United States v. Ramirez, 79 F.3d 298, 304-05 (2d Cir. 1996) (stating that “once a

suspect has unequivocally invoked his right to remain silent whether in the form of refusing to

answer questions or asking that an ongoing interrogation be terminated, his request must be

scrupulously honored”) (internal citations omitted). Therefore, the fact that Davie may have

continued to answer questions after verbally expressing his wish not to make a statement does not

constitute a waiver. This is as it should be; otherwise police could disregard a defendant’s

invocation of his rights in the hope that subsequent interrogation would “cast retrospective doubt”

on the invocation of the right. See Judge Nelson’s clear opinion for the court in McGraw v. Holland,

257 F.3d 513, 518-19 (6th Cir. 2001) (post-request responses after invocation of right to silence may

not be used by the State as a waiver of rights because the continued questioning violates the

requirement that the “exercise of the right be scrupulously honored”). See also LeFave, Israel &

King, Criminal Procedure § 6.9(g).

No. 03-4293 Davie v. Mitchell Page 32

Such interrogation is prohibited where the suspect has clearly and unambiguously invoked

his right to silence, as Davie had done numerous times in the previous several hours. “Although the

context and nuances of a request to end questioning can create ambiguity, they cannot overcome a

clear expression of the desire to remain silent.” United States v. Rambo, 365 F.3d 906, 910 (10th

Cir. 2004). There is no nuance or ambiguity that could vary the unequivocal meaning of Davie’s

refusal to sign the waiver and his repeated words to the police that morning: “no statement.” The

only meaning that can be attributed to those words is that Davie wished to exercise his right to

remain silent.

In this case, the State and the majority contend that Davie’s right to remain silent was

“scrupulously honored” because (1) the investigator temporarily ceased questioning him about the

case each time he asserted his Fifth Amendment right, and (2) then allowed a short time to pass

before any reinterrogation, and (3) then gave him fresh sets of Miranda warnings before any

reinterrogation. Specifically, they argue that the requirements of Mosley were met because when

defendant indicated that he did not want to make a statement at the 9:59 A.M. interview, police

ceased interrogation. They claim that Davie waived his right to remain silent during the 12:15 P.M.

and 2:00 P.M. encounters when he answered their questions after he refused to waive his rights by

signing the form.

This claim is mistaken because it assumes that the police may continue interrogation within

a couple of hours after the accused had expressly refused to waive his rights at the 9:59 A.M.

interview when Davie unequivocally refused to make a statement:

Blevins: [D]o you wish to make a statement yes or no.

Davie: No statement.

Blevins: You wish not to make a statement.

Davie: Right.

The 12:15 P.M. interview then began with Detective Sines of the new interrogation team saying to

Davie, “I’m Detective Sines and Detective Vingle and we will advise you of your rights, we want

to talk to you a little bit. If you have something to tell us, we’ll listen to you. If you have nothing

to tell us then we’ll go from there okay.” Vingle says, “Okay Rod before we ask you any questions

you might understand your rights. Do you understand that right.” Although it is not clear what

“right” Vingle is inquiring about, Davie answers “Yes.” Vingle then read the Miranda warning and

the waiver portion of the form aloud to Davie. Davie indicated verbally both times that he

understood his rights. The officers did not in any way inform Davie that if he did not want to talk

the interview would cease. Instead they improperly said “If you have nothing to tell us then we’ll

go from there okay” — meaning as it turned out that if you do not waive your rights, we will

question you anyway.

At the 12:15 interview, Davie again refused to sign the proffered waiver form: “Well I’m

not signing the waiver of rights. I didn’t sign it earlier.” This reply told the officers that Davie

thought that the refusal to sign the waiver form was all he had to do to protect himself from self-

incrimination. The new detectives again tried to get him to sign the waiver form after asking a few

general questions unrelated to the crime. The persistent pressure put upon Davie to sign the waiver

form reinforced his belief that his rights were protected as long as he did not sign the waiver. He

knew the detectives had tried time after time to get him to sign it. His refusal to sign meant that he

had not waived his rights. The rambling 12:15 P.M. interrogation ends with Davie saying he doesn’t

“remember” anything about what he did that morning, despite repeated attempts by the police to get

him to talk about it. For the fourth time within less than four hours, Davie had refused to confess.

It is perfectly clear that the 2:00 P.M. encounter was not a request by Davie to reinitiate the

interrogation. Therefore, the majority err when they simply concluded that any statements made by

No. 03-4293 Davie v. Mitchell Page 33

Davie after “reinitiating” contact with the police are admissible. The mere act of asking a police

officer a question does not constitute a waiver of a previously invoked right to remain silent.

Contrary to the majority’s characterization of the 2:00 P.M. interrogation as “initiated” by

Davie and therefore not worthy of further analysis, it seems obvious that once Davie invoked his

Fifth Amendment right to remain silent, the police were obligated to scrupulously honor the right

he invoked whenever they interacted with him. That means that police should not have resumed any

interrogation of Davie, either directly or indirectly, by any means without obtaining an unequivocal

waiver from Davie. See Rhode Island v. Innis, 446 U.S. 291 (1980). Vingle’s indirect means of

resuming the questioning by turning Davie’s question back to him was just the sort of improper

contact that Mosley seeks to prevent.

Consistent with all the previous encounters, Davie again refused to sign the waiver form

when the police asked him again for the waiver at 2:00 P.M. There is no basis for concluding that

by asking Officer Vingle a question that Davie intended to waive his right to remain silent and his

right to counsel or that he wanted to confess. The question that Davie asked did not override his

earlier unequivocal statements concerning his desire not to make a statement and his deliberate

refusal to sign the waiver portion of the form on all of the occasions in which he came in contact

with the police.

The First Circuit has stated that the correct course of action would be for the police officer

(if he plans to continue to interrogate) to inform the accused that the refusal to sign the waiver does

not mean that his statements cannot be used against him. United States v. Van Dusen, 431 F.2d

1278, 1280 (1st Cir. 1970). The court explained:

in the delicate area of advising one of his rights, where testimony is often conflicting,

the act of refusing to sign a waiver is concrete and indisputable. When such an act

occurs, followed by a willingness to talk, this is a signal of some quirk of reasoning

which may simply be a dislike of affixing a signature to any document but which

may be more. It may indicate a serious misunderstanding on the part of the accused.

In such a succession of events, we wish to make it clear to the courts and prosecutors

in this circuit that the burden of persuasion resting on the prosecution measurably

increases.

Id. (emphasis added). Investigating officers should clearly inform the accused that his failure to sign

the waiver does not prevent statements he makes from being used against him.

Likewise, in United States v. Heldt, 745 F.2d 1275 (9th Cir. 1984), Heldt stated that he

understood his rights but did not wish to waive them. He refused to sign the waiver form and told

police he did not wish to answer questions. The officer told him he did not need to sign the waiver

form but asked him if he would be willing to answer questions anyway. The questioning continued

for three hours. Heldt later moved to suppress the admissions he had given to police. Like the First

Circuit in Van Dusen, the Ninth Circuit noted that it is the government’s burden to prove that a

knowing, intelligent and voluntary waiver was given. The government failed to do so because the

prisoner’s refusal to sign the waiver form cast “doubt” on any claim that he waived his Miranda

rights. The Ninth Circuit suppressed the confession, holding that the government must clearly prove

a “knowing and intelligent” waiver when the police continued questioning after a refusal to sign.

As in Heldt, Davie’s case requires suppression because the police persisted not only after a

refusal to sign, but also because they persisted even after Davie expressly invoked his right to

silence by refusing to talk.

I, therefore, dissent from the effort by my colleagues to bury Miranda under a mountain of

AEDPA rhetoric. Until the Supreme Court overrules Miranda, we should follow it, no matter how

No. 03-4293 Davie v. Mitchell Page 34

much we prefer to side with the police against the liberties created by the Fifth and Sixth

Amendments.