# Surinder Bains v. Gomez, Director, Steve Cambra James H. > Court of Appeals for the Ninth Circuit · March 2, 2000 · 204 F.3d 964 URL: https://www.frixlaw.com/law-library/cases/9492830 ## Case - **Full name:** Surinder BAINS, Petitioner-Appellant, v. Steve CAMBRA; James H. Gomez, Director, Respondents-Appellees - **Court:** Court of Appeals for the Ninth Circuit - **Decided:** March 2, 2000 - **Citations:** 204 F.3d 964; 2000 Daily Journal DAR 2331; 2000 Cal. Daily Op. Serv. 1654; 2000 U.S. App. LEXIS 3138; 2000 WL 232270 - **Precedential status:** Published - **Opinion:** Concurrence by Silverman - **Judges:** Choy, Canby, Silverman - **Cited by:** 134 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9492830 ## How later opinions describe it (automated extraction) - holding that the state court’s determination that petitioner was not in custody was not unreasonable under AEDPA, where the petitioner voluntarily went to the police station, was interviewed by three police officers and one polygraph examiner, was deceitfully told that another… - recognizing and joining a con- sensus among the circuits that “federal district courts always should apply the Brecht standard when conducting their own independent harmless error review, regardless of what, if any, type of harmless error review was conducted by the state courts” - recognizing and joining a consensus among the circuits that “federal district courts always should apply the Brecht standard when conducting their own independent harmless error review, regardless of what, if any, type of harmless error review was conducted by the state courts” - explaining that prejudice determination for federal habeas review announced in Brecht v. Abrahamson, 507 U.S. 619, 637-38, 113 S.Ct. 1710, 123 L.Ed.2d 353 (1993) is the “equivalent” of California state law error prejudice standard - holding that federal courts “always should apply the Brecht standard when conducting their own independent harmless error review, regardless of what, if any, type of harmless error review was conducted by the state courts” ## Opinion text SILVERMAN, Circuit Judge, concurring: There is no denying that errors occurred at the trial of this case. The only issue on habeas review is whether the errors were harmless. I agree with Judge Choy’s analysis of the Brecht issue and write separately only to emphasize the strength of the prosecution’s evidence that ivas properly admitted. The fingerprints of Bains’s co-defendant, Hidalgo, were found on the driver’s door frame of the victim’s car. In addition, he had been positively identified lurking around the victim’s apartment and inspecting his car. Tire tread marks connected Hidalgo’s vehicle to the crime scene, as did damage to Hildago’s car bumper which matched damage found at the victim’s carport where the murder occurred. Telephone records established that ten days before the murder, on the day the victim returned from India but before he arrived home from the airport, someone placed a phone call to Bains’s home from the victim’s apartment. The testimony strongly supports the inference that it was Hidalgo. Bains originally told police that he barely knew Hildago and that he did not know his phone number. However, a search of Bains’s residence revealed two telephone ledgers containing Hidalgo’s home and workplace phone numbers, and the home phone number of Hidalgo’s brother. Police also found at Bains’s home a check register listing a $200 check to which Hi-dalgo’s name had been added and that Hidalgo had endorsed — a check that Hi-dalgo, after his arrest, sought to conceal. In addition, telephone records established that within the ten days prior to the murder, over twenty telephone calls were placed from Bains’s home to Hidalgo’s home, Hidalgo’s work or Hidalgo’s brother, and from Bains’s phone to the victim’s apartment. As the district judge found, “In light of the phone records demonstrating many calls between petitioner and Hidalgo, [Bains’s] denials to the police that he had any relationship with Hidalgo were particularly damaging to his defense.” An essential ingredient of Judge Can-by’s thoughtful dissent is his conclusion that virtually all of Bains’s statements were obtained in violation of Miranda and therefore, cannot be taken into account in the harmless error equation. It is true that without the statements, the case against Bains falls apart. However, as Judge Choy has demonstrated — and as the district judge and the state courts also have found — the evidence amply supports the conclusion that Bains was not in custody at the time he made his incriminating statements and therefore, that Miranda did not require their suppression. The evidence is undisputed that Bains went to the police station voluntarily. He was not under arrest, in handcuffs, placed in a cell or in a locked room. Although Judge Can-by makes the point that “[Bains] was not informed that he was free to leave at any time[,]” Dissent at 2293, Miranda simply does not require that the police tell suspects, “You have the right to leave.” I see no Miranda significance in the fact that “Bains had been home that morning when a search warrant was executed at his house[ ]” or that he voluntarily rode to the police station in a police car instead of driving himself. Dissent at 979. It is undisputed that Bains voluntarily agreed to go to the police station and answer *979 questions. It is custodial interrogation that triggers Miranda’s requirements, not the fact that an investigation has focused on a suspect or that he rode to the station in a police car. See Beckwith v. United States, 425 U.S. 341, 346-47 , 96 S.Ct. 1612 , 48 L.Ed.2d 1 (1976). It is true that at some point, the interrogation of Bains became custodial. The transcript of the interview is 264 pages long. At page 183, Bains asked to go home and come back the next day, a request that was denied. In my view, that is when the interrogation turned custodial. 1 The fact that Bains, prior to that point, attempted to assert his desire to leave and to voluntarily return the next day clearly shows that he did not consider himself in custody, i.e., “that questioning [would] continue until he provide[d] his interrogators the answers they seek.” See Berkemer v. McCarty, 468 U.S. 420, 438 , 104 S.Ct. 3138 , 82 L.Ed.2d 317 (1984). And it strongly supports a finding that he was not in custody until his request to leave was denied. See Thompson v. Keohane, 516 U.S. 99 , 116 S.Ct. 457 , 133 L.Ed.2d 383 (1995). Although this was not a perfect trial, I agree with Judge Choy and the district judge that it passes the Brecht test. . The prosecution stipulated that it would not, and it did not, introduce any statements Bains made after page 170, when he requested a lawyer. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9492830. Public record. Not legal advice.