Petition for Writ of Certiorari — Joshua Chiazor Ezeka, Petitioner v. Minnesota
Supreme Court briefOct 13, 2020
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No. __________
IN THE
SUPREME COURT OF THE UNITED STATES
JOSHUA CHIAZOR EZEKA,
Petitioner,
v.
STATE OF MINNESOTA
Respondent.
On Petition for Writ of Certiorari
to the Minnesota Supreme Court
PETITION FOR WRIT OF CERTIORARI
GLORIA CONTRERAS EDIN
Counsel of Record
NICO RATKOWSKI
Contreras & Metelska, P.A.
200 University Avenue W.
Suite 200
Saint Paul, MN 55103
(651) 771-0019
gloria@contrerasmetelska.com
nico@contrerasmetelska.com
Counsel for Petitioner
i
QUESTIONS PRESENTED
I.
The Fifth Amendment, in coordination with Miranda v. Arizona, requires
police officers to notify suspects of their right to remain silent and their right
to counsel at the outset of a custodial interrogation. Minnesota police officers
subjected Petitioner to two separate custodial interrogations and failed, in both
instances, to provide Petitioner with a Miranda warning at the outset of the
interrogations. Should Petitioner’s custodial statements be suppressed?
II.
The Sixth Amendment protects a criminal defendant’s right to have counsel
present at all important stages of proceedings, and this right attaches upon the
initiation of adversarial judicial proceedings against the defendant. Minnesota
formally charged Petitioner with second-degree intentional murder and
subsequently subjected Petitioner to custodial interrogation without counsel
present and without obtaining a waiver of Petitioner’s Sixth Amendment right
to counsel. Should Petitioner’s custodial statements be suppressed?
III.
Minnesota uses United States v. Olano’s “clear or obvious” test to determine
whether a trial court’s issuance of an erroneous jury instruction constitutes
“plain error” under state law. Minnesota acknowledged that, in Petitioner’s
case, the trial court issued an erroneous instruction, but determined the error
was not “plain” because it was not “clear and obvious.” Is Minnesota’s use of a
“clear and obvious” test repugnant to the Constitution or laws of the United
States?
ii
PARTIES TO THE PROCEEDINGS
All parties appear in the caption of the case on the cover page.
RELATED CASES
1. Minnesota Supreme Court
Docket number: A18-0828
State of Minnesota
v.
Joshua Chiazor Ezeka
Judgment was entered on Petitioner’s appeal on July 15, 2020.
2. Minnesota District Court
Docket number: 27-CR-17-1879
State of Minnesota
v.
Joshua Chiazor Ezeka
Judgment was entered on February 26, 2018.
iii
TABLE OF CONTENTS
QUESTIONS PRESENTED ................................................................................ i
PARTIES TO THE PROCEEDINGS ................................................................. ii
RELATED CASES .............................................................................................. ii
TABLE OF CONTENTS .................................................................................... iii
TABLE OF AUTHORITIES .............................................................................. iv
OPINIONS BELOW ............................................................................................ 1
JURISDICTION .................................................................................................. 1
STATUTORY PROVISIONS INVOLVED ......................................................... 1
STATEMENT OF THE CASE ............................................................................ 2
REASONS FOR GRANTING THE PETITION ............................................... 37
CONCLUSION .................................................................................................. 40
iv
TABLE OF AUTHORITIES
Cases
Brewer v. Williams,
430 U.S. 387 (1977) ............................................................................................ 25, 27
Cardinale v. Louisiana,
394 U.S. 437 (1969) .................................................................................................. 29
Davis v. North Carolina,
384 U.S. 737 (1966) ...................................................................................... 16, 17, 24
Edwards v. Arizona,
451 U.S. 477 (1981) ................................................................................ 10, 11, 12, 24
Fellers v. United States,
540 U.S. 519 (2004) ............................................................................................ 27, 30
Johnson v. United States,
520 U.S. 461 (1997) ............................................................................................ 34, 35
Johnson v. Zerbst,
304 U.S. 458 (1938) .................................................................................... 8, 9, 10, 27
Kansas v. Marsh,
548 U.S. 163 (2006) .................................................................................................. 34
Malloy v. Hogan,
378 U.S. 1 (1964) ........................................................................................................ 8
Maryland v. Shatzer,
559 U.S. 98 (2010) ...................................................................................... 8, 9, 11, 12
Massiah v. United States,
377 U.S. 201 (1964) .................................................................................................. 27
McNeil v. Wisconsin,
501 U.S. 171 (1991) ............................................................................................ 14, 37
Minnick v. Mississippi,
498 U.S. 146 (1990) ............................................................................................ 13, 14
v
Miranda v. Arizona,
384 U.S. 436 (1966) .......................................................................................... passim
Missouri v. Seibert,
542 U.S. 600 (2004) .......................................................................................... passim
Moran v. Burbine,
475 U.S. 412 (1986) ............................................................................................ 18, 37
Oregon v. Elstad,
470 U.S. 298 (1985) ...................................................................................... 15, 16, 24
Rosales-Mireles v. United States,
138 S. Ct. 1897 (2018) .............................................................................................. 36
State v. Beaulieu,
859 N.W.2d 275 (Minn. 2015) .................................................................................. 33
State v. Burg,
648 N.W.2d 673 (Minn. 2002) ............................................................................ 32, 34
State v. Ezeka,
946 N.W.2d 393 (Minn. 2020) .......................................................................... passim
State v. Griller,
583 N.W.2d 736 (Minn. 1998) ............................................................................ 34, 36
State v. Ihle,
640 N.W.2d 910 (Minn. 2002) .................................................................................. 34
State v. Kelly,
855 N.W.2d 269 (Minn. 2014) .................................................................................. 34
State v. Mouelle,
922 N.W.2d 706 (Minn. 2019) .................................................................................. 32
Terminiello v. Chicago,
337 U.S. 1 (1949) ...................................................................................................... 28
United States v. Ash,
413 U.S. 300 (1973) .................................................................................................. 27
United States v. Atkinson,
297 U.S. 157 (1936) .................................................................................................. 29
vi
United States v. Gouveia,
467 U.S. 180 (1984) ...................................................................................... 25, 26, 27
United States v. Littlejohn,
489 F.3d 1335 (D.C. Cir. 2007) .......................................................................... 19, 20
United States v. Olano,
507 U.S. 725 (1993) .......................................................................................... passim
United States v. Wade,
388 U.S. 218 (1967) .................................................................................................. 27
Vachon v. New Hampshire,
414 U.S. 478 (1974) .................................................................................................. 28
Williams v. Taylor,
529 U.S. 362 (2000) ...................................................................................... 25, 33, 36
Statutes
28 U.S.C. § 1257 ................................................................................................. 1, 24, 35
28 U.S.C. § 1331 ............................................................................................................. 1
Minn. Stat. § 609.05................................................................................................. 2, 34
Minn. Stat. § 609.17....................................................................................................... 2
Minn. Stat. § 609.185..................................................................................................... 1
Minn. Stat. § 609.19................................................................................................. 1, 30
Rules
Fed. R. Crim. P. 1......................................................................................................... 28
Fed. R. Crim. P. 52(b) ................................................................................ 28, 31, 32, 35
Minn. R. Crim. P. 2.01 ............................................................................................. 7, 26
Minn. R. Crim. P. 31.02 ................................................................................... 33, 35, 36
Treatises
Police Law Institute, Illinois Police Law Manual 83 (Jan. 2001–Dec. 2003) ............ 19
vii
Constitutional Provisions
U.S. Const., amend. V.......................................................................................... passim
U.S. Const., amend. VI ........................................................................................ passim
U.S. Const., amend. XIV .......................................................................................... 8, 28
U.S. Const., Art. VI, cl. 2 ............................................................................................. 36
Minn. Const., Art. I, sec. 7 ............................................................................................. 5
1
OPINIONS BELOW
The published memorandum opinion of the Minnesota Supreme Court (App. 152) is reported at State v. Ezeka, 946 N.W.2d 393 (Minn. 2020). The verdict of the
jury, finding Petitioner guilty, is unreported. App. 53-77.
JURISDICTION
The judgment of the Minnesota Supreme Court was entered on July 15, 2020.
The jurisdiction of this Court rests upon 28 U.S.C. § 1257(a) and 28 U.S.C. § 1331.
CONSTITUTIONAL & STATUTORY PROVISIONS INVOLVED
Pertinent provisions, listed below, are provided below:
Fifth Amendment to the Constitution
No person… shall be compelled in any criminal case to be a witness
against himself, nor be deprived of life, liberty, or property, without due
process of law…
Sixth Amendment to the Constitution
In all criminal prosecutions, the accused shall enjoy the right… to have
the Assistance of Counsel for his defence.
Minn. Stat. § 609.185. Murder in the first degree.
(a) Whoever does any of the following is guilty of murder in the first
degree and shall be sentenced to imprisonment for life:
(1) causes the death of a human being with premeditation and with
intent to effect the death of the person or of another; …
Minn. Stat. § 609.19. Murder in the second degree.
Subdivision 1. Intentional murder; drive-by shootings. Whoever
does either of the following is guilty of murder in the second degree and
may be sentenced to imprisonment for not more than 40 years:
2
(1) causes the death of a human being with intent to effect the death
of that person or another, but without premeditation; …
Minn. Stat. § 609.05. Liability for crimes of another.
Subdivision 1. Aiding, abetting; liability. A person is criminally
liable for a crime committed by another if the person intentionally aids,
advises, hires, counsels, or conspires with or otherwise procures the
other to commit the crime. …
Minn. Stat. § 609.17. Attempts.
Subdivision 1. Crime defined. Whoever, with intent to commit a
crime, does an act which is a substantial step toward, and more than
preparation for, the commission of the crime is guilty of an attempt to
commit that crime, and may be punished as provided in subdivision 4.
…
STATEMENT OF THE CASE
On June 2, 2016, Petitioner was subjected to custodial interrogation in relation
to a homicide investigation. Petitioner immediately and unequivocally invoked his
right to counsel. The police investigators ignored Petitioner’s request for counsel and
proceeded to interrogate Petitioner for more than half an hour in an extremely
confrontational manner. Petitioner was released from custody on June 24, 2016.
On January 23, 2017, Petitioner was formally charged with second-degree
intentional murder. Later that day, Petitioner was arrested by police at gunpoint and
subjected to custodial interrogation without an attorney present. The police never
obtained an oral or written waiver of Petitioner’s right to counsel under the Sixth
Amendment. During this interrogation, the police officers deliberately elicited
information, in the form of a confession, from Petitioner. The police officers who
3
interrogated Petitioner on January 23, 2017 were the same officers who interrogated
him and ignored his request for counsel on June 2, 2016.
The police did not notify Petitioner that he had the right to remain silent and
the right to an attorney at the outset of the custodial interrogation, providing these
warnings only after subjecting Petitioner to 13 minutes of intense adversarial
questioning. After finally providing Petitioner a Miranda warning, the police
cryptically asked Petitioner if he would waive his Miranda rights by way of a
compound question, asking, “wanna talk to us, see some of these pictures and kind of
get the, get through this thing today with us…?” App. 111 (Petitioner responded by
saying “Yeah I wanna see”). The police did not obtain a clear waiver of Petitioner’s
Miranda rights and inhibited Petitioner’s ability to voluntarily and knowingly waive
his Miranda rights by asking whether Petitioner wanted to “talk” and “see some…
pictures” instead of asking whether Petitioner was voluntarily waiving his Miranda
rights. “[T]here was virtually no pause between the reading of Miranda and the postMiranda interrogation,” despite Petitioner having made an “inculpatory statement”
to police during the custodial interrogation immediately before he was provided a
Miranda warning. App. 88-89.
Almost immediately after Petitioner was provided a Miranda warning, he
confessed to killing someone. At the time of this confession, Petitioner’s will was
overborne by the police’s coercive tactics. Although the investigators indicated during
the custodial interrogation that Petitioner’s honesty would result in prosecutorial
4
leniency, Petitioner’s confession was instead used by the prosecution to elevate
Petitioner’s charges from second-degree intentional murder (carrying a maximum
sentence of 40 years) to first-degree premeditated murder (carrying a maximum
sentence of life without the possibility of parole). The prosecution also sought
aggravated sentencing.
Petitioner moved the trial court to suppress all of his custodial statements. The
trial court suppressed all of Petitioner’s June 2, 2016 custodial statements, but the
trial court denied Petitioner’s request to suppress his custodial statements from
January 23, 2017, thereby rendering Petitioner’s trial a nullity.1 Petitioner was never
offered a plea deal.
Petitioner was eventually tried by a jury and was convicted of first-degree
premeditated murder, attempted first-degree premeditated murder, and seconddegree assault.2
Petitioner was then sentenced to, inter alia, life without the possibility of
parole. Supra at 4 n.1. Errors abounded during both the pretrial and trial stages of
Petitioner’s proceedings, but no mistrial was ever declared. The trial court failed to
suppress evidence that should have been suppressed, relied on evidence it had no
1 All statements in this petition to the effect of “Petitioner’s custodial statements must be
suppressed” are in reference to the custodial statements Petitioner made on January 23, 2017 since
the June 2, 2016 statements were properly suppressed by the trial court.
2 Petitioner was sentenced to 240 months for the attempted murder count and 36 months on
the assault count, both to be served consecutively. Petitioner challenges the constitutionality of these
convictions and sentences on the same grounds he challenges his premeditated murder conviction and
sentence. If a new trial is ordered, Petitioner requests the order be applicable to all counts for which
Petitioner was convicted, and not just for the premeditated murder count.
5
right to consider, issued plainly erroneous and prejudicial jury instructions, and
otherwise allowed a miscarriage of justice to occur.
Petitioner appealed to the Minnesota Supreme Court, challenging the trial
court’s refusal to suppress Petitioner’s custodial statements. Petitioner also appealed
the issuance of plainly erroneous jury instructions, the jury’s guilty verdict, and
portions of the trial court’s sentence. See App. 90.
The Minnesota Supreme Court, though deeply divided, ultimately affirmed the
jury verdict by the razor-thin margin of 4-to-3 with two dissenting justices writing
separately and persuasively. See Ezeka, 946 N.W.2d at 410-423. The dissenting
justices concluded that Petitioner’s confession was “obtained using unconstitutional
coercive custodial interrogation methods.” See 946 N.W.2d at 410 (Anderson, J.,
dissenting); id. at 416 (Hudson, J., joining Justice Anderson’s dissent); id. at 416
(Thissen, J., dissenting) (“I disagree with the majority of the court that Ezeka’s
confession was voluntary. I conclude that his confession was the result of improper
and unconstitutional police coercion.”). The dissenting justices are convinced
Petitioner deserves a new trial.
Petitioner is not asking for a judgment of acquittal; he merely requests
fundamental fairness.
I.
June 2, 2016 – Interrogation #1
On June 2, 2016, police investigators conducted a custodial
interrogation of [Petitioner]. During the interrogation, [Petitioner]
invoked his right to counsel under Article I, Section 7 of the Minnesota
6
Constitution and the Fifth Amendment to the United States
Constitution. The investigators disregarded the invocation and
continued
to
question
[Petitioner].
Throughout
the
interrogation, [Petitioner] maintained that he was not involved
in the shooting. [Petitioner] was released from custody 22 days later,
on June 24, 2016.
Ezeka, 946 N.W.2d at 398-99 (emphasis added). A video of this encounter clearly
shows that both police officers read the letter in which Petitioner requested counsel.
See App., Video of Custodial Interview (June 2, 2016) (11:13:44 AM to 11:14:33 AM
and 11:18:40 AM to 11:19:14 AM). Despite this, the officers continued to interrogate
Petitioner instead of immediately ending the interview. E.g., App. 82-83, 85-86.
Petitioner’s written request for counsel was filed into evidence as Exhibit 6. App. 91.
Petitioner was released from custody on June 24, 2016. Ezeka, 946 N.W.2d at 398.
The trial court properly determined that this letter constituted a “clear and
unequivocal request for counsel” and consequentially suppressed all statements made
by Petitioner during this initial interrogation. E.g., Ezeka, 946 N.W.2d at 400 n.2;
App. 85-86. The trial court also noted that any waiver of Petitioner’s Miranda rights
(regarding the homicide) could not have been knowing and voluntary, as Petitioner
only indicated that he was willing to talk to the police officers about the probation
violation that initially landed him in custody. App. 86.
II.
January 23, 2017 – Interrogation #2
On January 23, 2017, the State e-filed a criminal complaint charging
Petitioner with second-degree intentional murder. See Ezeka, 946 N.W.2d at 398;
App. 164-67. A state judge then made a positive probable cause determination and
7
issued a warrant for Petitioner’s arrest, thereby initiating adversarial judicial
proceedings. App. 167; Minn. R. Crim. P. 2.01. On January 23, 2017, after adversarial
judicial proceedings had commenced, “police arrested [Petitioner] at gunpoint and
transported him to the Hennepin County Jail.” Ezeka, 946 N.W.2d at 398. Petitioner
was brought to the station and was “interrogated in the same room and by the same
investigators as the June 2016 interrogation” without an attorney present. Id. This
interrogation was aptly, but incompletely, summed up by the Minnesota Supreme
Court:
The investigators greeted Ezeka… then asked if Ezeka remembered
the earlier interrogation. Ezeka said he did. The first investigator told
Ezeka they had “some additional questions.” He explained that they had
talked “to a lot of people,” they knew “what happened,” and they believed
it “wasn’t an intentional act on [his] part.” In response to these
statements, Ezeka said, “I didn’t do it.”
The investigators then discussed the evidence against Ezeka. They
explained the charges and the fact that Ezeka was facing 60 years in
prison. When Ezeka said, “It’s a long time,” the second investigator
replied, “it’s a long time, you’re too young for this.” The first
investigator then said, “Before we start showing you any of
these pictures [from our file] and talking about that, um, we
gotta read you your rights.” But before the first investigator
could proceed, the second investigator interjected that drive-by
shootings directed at Ezeka’s house might end if he talked.
Expressing disbelief, Ezeka asked how an admission would stop the
shootings. The first investigator told Ezeka that … with some answers,
maybe some explanations here, maybe that stuff will stop.”
After reminding Ezeka that he was facing 60 years in prison, the
second investigator said, “The prosecutor, I think will entertain an
explanation of what happened.” Ezeka then asked, “So, about this
person that’s in this gold car that I shooting at, what’s his name,
you said, Sto?” When the first investigator repeated the name
“Sto,” Ezeka replied, “[w]ho told you guys that?” After
explaining that he could not disclose the names of witnesses, the
8
first investigator read Ezeka the Miranda warning. The preMiranda portion of the January 2017 interrogation lasted 13
minutes.
Ezeka, 946 N.W.2d at 399 (emphasis added); see generally App., Video of Custodial
Interview (Jan. 23, 2017).
The trial court denied Petitioner’s motion to suppress his January 23, 2017
custodial statements despite acknowledging that Petitioner “was apprehended under
coercive circumstances” and made an “incriminating statement” during a custodial
interrogation before being given a Miranda warning. App. 89. In denying Petitioner’s
motion to suppress these statements, the trial court impermissibly placed the burden
of proving Petitioner’s statements were involuntary on Petitioner instead of insisting
the State prove Petitioner’s statements were not involuntary. See App. 88; see
Johnson v. Zerbst, 304 U.S. 458, 464 (1938).
III.
Minnesota’s Failure to Suppress Petitioner’s Custodial Statements
Violates the Constitution
A. Minnesota’s Failure to Suppress Petitioner’s Custodial Statements
Violates Petitioner’s Fifth Amendment Rights
The Fifth Amendment applies to the states by virtue of the Fourteenth
Amendment and provides, “[n]o person ... shall be compelled in any criminal case to
be a witness against himself.” U.S. Const., amend. V; Malloy v. Hogan, 378 U.S. 1, 6
(1964); Maryland v. Shatzer, 559 U.S. 98, 103 (2010). “In Miranda v. Arizona, 384
U.S. 436 (1966), the Court adopted a set of prophylactic measures to protect a
suspect’s Fifth Amendment right from the ‘inherently compelling pressures’ of
custodial interrogation.” Shatzer, 559 U.S. at 103 (quoting Miranda, 384 U.S. at 467).
9
“The Court observed that ‘incommunicado interrogation’ in an ‘unfamiliar,’ ‘policedominated atmosphere,’ … involves psychological 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.’ ” Id. (citation omitted). “Consequently, … ‘[u]nless
adequate protective devices are employed to dispel the compulsion inherent in
custodial surroundings, no statement obtained from the defendant can truly be the
product of his free choice.’ ” Id. (citation omitted).
Miranda compelled police officers to warn a suspect, prior to questioning, that
the accused has the right to remain silent, and the right to the presence of an
attorney. See Miranda, 384 U.S. at 444. “After the warnings are given, if the suspect
indicates that he wishes to remain silent, the interrogation must cease.” Shatzer, 559
U.S. at 104 (citation omitted). If a suspect states that they want an attorney, “the
interrogation must cease.” Id. (citation omitted). A suspect’s Miranda rights are
waivable, but to establish that an accused validly waived such rights, “the State must
show that the waiver was knowing, intelligent, and voluntary under the ‘high
standar[d] of proof for the waiver of constitutional rights [set forth in] Johnson v.
Zerbst, 304 U.S. 458… (1938).’ ” Shatzer, 559 U.S. at 104 (citation omitted).
Here, Petitioner was subjected to custodial interrogation on June 2, 2016 and
again on January 23, 2017. Petitioner requested counsel during the first
interrogation, but not during the second interrogation. Petitioner’s initial request for
counsel was flatly ignored. E.g., App. 91; see also App. 85. Petitioner’s statements
10
during the first, but not second, interrogation were suppressed. Minnesota failed to
establish that Petitioner made a knowing, intelligent, and voluntary waiver of
Petitioner’s Miranda rights under the high standard of proof outlined in Johnson v.
Zerbst, 304 U.S. at 464-65, and the State erred by determining that Petitioner bore
the burden of proving his waiver was involuntary. See App. 87 (refusing to consider
whether the alleged Miranda waiver from January 23, 2017 was made knowingly and
voluntarily because “Defendant has not argued that the waiver of his rights was
invalid.”). After reviewing the video and transcript of the January 23, 2017
interrogation, no reasonable jurist can conclude that Petitioner made a knowing and
voluntary waiver of his Miranda rights or of his Fifth Amendment right to counsel.
As such, the trial court erred by failing to determine that Petitioner waived his
Miranda rights, and the appellate court erred by refusing to correct the trial court’s
error. See Ezeka, 946 N.W.2d at 405 n.4. Miranda requires the suppression of
Petitioner’s January 23, 2017 custodial statements.
In Edwards v. Arizona, 451 U.S. 477 (1981), this Court held, “when an accused
has invoked his right to have counsel present during custodial interrogation, a valid
waiver of that right cannot be established by showing only that he responded to
further police-initiated custodial interrogation even if he has been advised of his
rights.” 451 U.S. at 484. In Edwards, “the Court determined that Zerbst’s traditional
standard for waiver was not sufficient to protect a suspect’s right to have counsel
present at a subsequent interrogation if he had previously requested counsel;
11
‘additional safeguards’ were necessary” and “therefore superimposed a ‘second layer
of prophylaxis,’ ” holding that “an accused, … having expressed his desire to deal with
the police only through counsel, is not subject to further interrogation by the
authorities until counsel has been made available to him, unless the accused himself
initiates further communication, exchanges, or conversations with the police.”
Shatzer, 559 U.S. at 104 (citations omitted); Edwards, 451 U.S. at 484-85. In
Maryland v. Shatzer, 559 U.S. 98 (2010), this Court crafted a bright-line rule,
clarifying that Edwards’ umbrella of protection, relating to the availability of the
accused for further interrogation and the presumption of involuntariness relating to
the waiver of Miranda rights, expires after a “14-day… break-in-custody.” 559 U.S.
at 110.
Here, Petitioner invoked his right to have counsel present during a custodial
interrogation on June 2, 2016. App. 85-86. Although Petitioner responded to further
police-initiated custodial interrogation on that date, his custodial statements were
nonetheless suppressed by the trial court because Petitioner’s “clear and unequivocal
invocation of his right to counsel… was not honored by the detectives.” App. 86. The
trial court also determined that any waiver of Petitioner’s Miranda rights allegedly
occurring on June 2, 2016 “was not a knowing waiver of his right to counsel with
regard to the shooting.” App. 86. On January 23, 2017, during Petitioner’s second
custodial interrogation, Petitioner did not immediately and without prompting
request counsel as he did during the first custodial interrogation. Instead, Petitioner
12
fell into his interrogators’ trap and began conversing with them until his will was
overborne; Petitioner quickly confessed to killing an individual.
Although Petitioner’s second custodial interrogation took place more than 14
days after he was released from custody, following the first custodial interrogation,
Petitioner was not provided with a fresh Miranda warning until after he had made
inculpatory statements to police. See App. 84, 89 (the trial court determined
Petitioner made an “incriminating” or “inculpatory” statement before he was given a
Miranda warning). As such, although the police were allowed to subject Petitioner to
custodial interrogation, a valid waiver of Petitioner’s Miranda rights during the
second interrogation cannot be inferred from Petitioner’s responses to police-initiated
questioning, and this remains true for the post-Miranda portion of the interrogation.
Petitioner was never allowed to confer with counsel, despite having previously
requested counsel, and Edwards, therefore, holds that Petitioner’s custodial
statements from the second interrogation must be suppressed. Edwards further
counsels in favor of finding that Petitioner’s custodial statements were involuntary.
Relatedly, Shatzer’s 14-day break-in-custody rule, which normally acts to limit
Edwards’ scope to the 14-day post-custodial period, is inapplicable in the present
context because Shatzer presumes that police officers will issue a Miranda warning
at the outset of a custodial interrogation. See Shatzer, 559 U.S. at 109 (“The
protections offered by Miranda, which we have deemed sufficient to ensure that the
police respect the suspect’s desire to have an attorney present the first time police
13
interrogate him, adequately ensure that result when a suspect who initially
requested counsel is reinterrogated after a break in custody that is of sufficient
duration to dissipate its coercive effects.”). When this does not occur, as was the case
here, applying Shatzer to limit Edwards has the unintended effect of defeating the
underlying rationale of Shatzer by immunizing coercive police conduct in the absence
of prophylactic measures intended to combat the deleterious effects of coercive police
conduct. Shatzer’s judicially crafted modification of the Edwards rule “is justified only
by reference to its prophylactic purpose, … and applies only where its benefits
outweigh its costs.” Shatzer, 559 U.S. at 106 (citations and internal quotations
omitted). Because Shatzer is inapplicable in the present case, Edwards compels the
suppression of Petitioner’s custodial statements.
In Minnick v. Mississippi, 498 U.S. 146 (1990), this Court held “that when
counsel is requested, interrogation must cease, and officials may not reinitiate
interrogation without counsel present, whether or not the accused has consulted with
his attorney.” Minnick, 498 U.S. at 153. Minnick qualified this holding, stating that
a waiver of a suspect’s Fifth Amendment protections can still be waived after counsel
has been requested “provided the accused has initiated the conversation or discussion
with the authorities.” Id. at 156.
Here, Petitioner requested counsel on June 2, 2016. Accord App. 85-86, 91. The
interrogation did not cease immediately, but Petitioner was eventually released. See
id. On January 23, 2017, police reinitiated interrogation and questioned Petitioner
14
without counsel present for more than 13 minutes, thereby violating Minnick. Ezeka,
946 N.W.2d at 399. Petitioner did not initiate this conversation or discussion. See
App. 106; see also Ezeka, 946 N.W.2d at 418-19 (Thissen, J. dissenting) (concluding
the district court clearly erred by determining that “it was [Petitioner] who kept
asking questions which delayed the reading of Miranda”). Instead, Petitioner
responded to aggressive and accusatory pre-Miranda questioning until he admitted
to “shooting at” an individual. See id. at 399; App. 84, 89; App. 110. Minnick counsels
that Petitioner was deprived of his right to counsel under the Fifth Amendment, and
indicates that Petitioner did not make an intelligent and voluntary waiver of his right
to counsel, thereby casting further doubt on the voluntariness of Petitioner’s custodial
statements. Under Minnick, Petitioner’s custodial statements must be suppressed.
In McNeil v. Wisconsin, 501 U.S. 171 (1991), this Court noted that it has
“allowed the Miranda right to counsel, once asserted, to be effective with respect to
future custodial interrogation.” McNeil, 501 U.S. at 182 n.3. Here, Petitioner’s written
invocation of his right to counsel was given to police during a custodial interrogation
on June 2, 2016. Petitioner’s invocation of counsel was asserted at a time and place
that allowed it “to be effective with respect to future custodial interrogation.” See id.
Minnesota’s failure to honor Petitioner’s Fifth Amendment right to counsel on June
2, 2016, and again on January 23, 2017, justifies suppressing Petitioner’s January
23, 2017 custodial statements. These dual Fifth Amendment right to counsel
15
violations also indicate that Petitioner’s January 23, 2017 custodial statements were
involuntary.
In Oregon v. Elstad, 470 U.S. 298 (1985), this Court held, “[f]ailure to
administer Miranda warnings creates a presumption of compulsion. Consequently,
unwarned statements that are otherwise voluntary within the meaning of the Fifth
Amendment must nevertheless be excluded from evidence under Miranda.” Elstad,
470 U.S. at 307. The Court continued, stating, “[t]hough Miranda requires that the
unwarned admission must be suppressed, the admissibility of any subsequent
statement should turn in these circumstances solely on whether it is knowingly and
voluntarily made.” Id.
During both of Petitioner’s custodial interrogations, police refused to
administer a Miranda warning promptly. See App. 106-11, 137-42. In each instance,
the same two officers attempted to coerce a confession from Petitioner before making
any attempt to inform Petitioner that he had the right to remain silent and the right
to have an attorney present. Id. Considering that the same two police officers
conducted both interrogations, the officers’ conduct during the second interrogation
creates an especially strong presumption of compulsion because the officers knew: (1)
they could get under Petitioner’s skin and coerce him into speaking more freely than
he would with counsel present, and (2) Petitioner would be less likely to invoke his
rights to counsel and to remain silent since his prior invocations were ignored by the
same officers now questioning him again. See Elstad, 470 U.S. at 307; App., Video of
16
Custodial Interview (June 2, 2016) (11:13:44 AM to 11:19:14 AM; ignoring Miranda
rights); id. (11:50:30 AM to 11:56:40 AM; ordering Petitioner to “stand in the corner”
and harassing Petitioner by forcing him to take pictures against his will while
handcuffed); Ezeka, 946 N.W.2d at 420-21 (Thissen, J., dissenting).
Under Elstad, it is necessary to exclude the entire first 13 minutes of
Petitioner’s second custodial statement even if this portion of the custodial statement
was voluntary, which Petitioner disputes. See Elstad, 470 U.S. at 307; App., Video of
Custodial Interview (Jan. 23, 2017) (1:51:52 PM to 2:05:33 PM; pre-Miranda portion
of interrogation). Similarly, the entirety of Petitioner’s post-Miranda admissions
must also be suppressed under Elstad because such statements flowed from
Petitioner’s pre-Miranda statements, without any break or lull in questioning, and
these facts, in combination with the coercive circumstances under which Petitioner
was apprehended and questioned, render Petitioner’s statement involuntary under
this Court’s Fifth Amendment jurisprudence. See App. 88 (holding Petitioner was
apprehended under coercive circumstances and “there was virtually no pause
between the reading of Miranda and the post-Miranda interrogation”); App., Video
of Custodial Interview (Jan. 23, 2017) (2:05:33 PM to 2:05:45 PM).
In Davis v. North Carolina, 384 U.S. 737 (1966), this Court provided, “that a
defendant was not advised of his right to remain silent or of his right respecting
counsel at the outset of interrogation, as is now required by Miranda, is a significant
factor in considering the voluntariness of statements later made. This factor has been
17
recognized in several of our prior decisions dealing with standards of voluntariness.”
Davis, 384 U.S. at 740-41 (citations omitted).
Here, police investigators did not advise Petitioner of his right to remain silent
or of his right to counsel at the outset of either custodial interrogation, as is required
by Miranda. Under Davis, this failure on the part of the police, not once but twice,
constitutes two significant factors (or perhaps one extremely significant factor) in
considering the voluntariness of Petitioner’s later statements, in which he confessed
to accidentally killing someone. The trial court’s failure to analyze this extremely
significant factor is repugnant to the Constitution and the laws of the United States.
See App. 87-89. The Minnesota Supreme Court compounded this error by relying on
Davis to hold that the second custodial interrogation was permitted because
Petitioner failed to unambiguously and unequivocally request counsel while
simultaneously ignoring the coercive effects, elucidated by Davis, of failing to provide
a Miranda warning at the outset of interrogation. See Ezeka, 946 N.W.2d at 402-07.
Davis counsels in favor of finding that Petitioner’s custodial statements were
involuntary. As such, Petitioner’s custodial statements must be suppressed.
In Missouri v. Seibert, this Court acknowledged that “when Miranda warnings
are inserted in the midst of coordinated and continuing interrogation, they are likely
to mislead and ‘depriv[e] a defendant of knowledge essential to his ability to
understand the nature of his rights and the consequences of abandoning them.’ ”
Missouri v. Seibert, 542 U.S. 600, 613-14 (2004) (quoting Moran v. Burbine, 475 U.S.
18
412, 424 (1986)). This is precisely what occurred during Petitioner’s second custodial
interrogation. See App. 88 (“he was arrested at gunpoint by six officers in his
girlfriend’s bedroom… there was virtually no pause between the reading of Miranda
and the post-Miranda interrogation”); App. 111 (evidencing that Petitioner gave
absolutely no thought to the nature of his Miranda rights or the consequences of
abandoning them after being given a Miranda warning amid a coordinated and
continuing interrogation, and showing that the detectives asked whether Petitioner
wanted to waive his Miranda rights in a manner likely to mislead the defendant).
The Seibert Court noted, “it would ordinarily be unrealistic to treat two spates
of integrated and proximately conducted questioning as independent interrogations
subject to independent evaluation simply because Miranda warnings formally
punctuate them in the middle.” Seibert, 542 U.S. at 614.
The Seibert Court also acknowledged the existence of “[t]he technique of
interrogating in successive, unwarned and warned phases.” Id. at 609. Specifically,
the Court stated:
Although we have no statistics on the frequency of this practice, it is not
confined to Rolla, Missouri. An officer of that police department testified
that the strategy of withholding Miranda warnings until after
interrogating and drawing out a confession was promoted not
only by his own department, but by a national police training
organization and other departments in which he had worked. …
Consistently with the officer’s testimony, the Police Law Institute,
for example, instructs that “officers may conduct a two-stage
interrogation.... At any point during the pre-Miranda
interrogation, usually after arrestees have confessed, officers
may then read the Miranda warnings and ask for a waiver. If the
arrestees waive their Miranda rights, officers will be able to
19
repeat any subsequent incriminating statements later in court.”
Police Law Institute, Illinois Police Law Manual 83 (Jan. 2001–Dec.
2003) (available in Clerk of Court’s case file) (hereinafter Police Law
Manual) (emphasis in original). The upshot of all this advice is a
question-first practice of some popularity, as one can see from the
reported cases describing its use, sometimes in obedience to
departmental policy.
Id. at 609-11 (citation to appendix omitted) (bold emphasis added); see also id. at 611
n.3 (collecting cases showing the question-first policy in action). The Seibert Court
found that “[t]he object of question-first is to render Miranda warnings ineffective by
waiting for a particularly opportune time to give them, after the suspect has already
confessed.” Id. at 611.
In Petitioner’s case, the investigating officers utilized the question-first
technique “ ‘to disable [Petitioner] from making a free and rational choice’ about
speaking.” See id. (quoting Miranda v. Arizona, 384 U.S. 436, 464-65 (1966)). Once
Petitioner was speaking, the officers repeatedly teased him with evidence, and then
tied their intended question—i.e., whether Petitioner would voluntarily waive his
Miranda rights—to the question of whether Petitioner wanted to review the evidence
against him. See App. 106-35; see also App. 83 (“Sgt. Thomsen read Defendant his
Miranda rights after several minutes of conversation.”). The officers did this by
asking whether Petitioner would waive his Miranda rights via a verbal compound
question. App. 111; see United States v. Littlejohn, 489 F.3d 1335 (D.C. Cir. 2007)
(discussing the dangers of compound questions at length and ultimately concluding
20
that, under the circumstances of the case, the district court’s compound question
during voir dire “violated the Sixth Amendment”).
Had the officers initially advised Petitioner of his right to counsel, Petitioner
may have realized his attorney could get him all of the evidence the officers could
possibly show him during the custodial interrogation. This is especially true since
Petitioner had already been formally charged, thereby initiating an adversarial
judicial process, and triggering the State’s duties to disclose its evidence to Petitioner.
Had the officers advised Petitioner of his right to remain silent, he may have invoked
his right to remain silent instead of conversing with the officers and falling into their
coercively laid trap. Had the officers asked Petitioner to sign a written waiver of his
Miranda rights instead of asking a compound and casual question about whether
Petitioner would “talk,” Petitioner may have invoked his rights instead of waiving
them (assuming arguendo a valid waiver actually occurred). See Littlejohn, 489 F.3d
at 1337, 1340-48 (discussing compound questions). Any of these outcomes would have
prevented Petitioner’s involuntary confession.
On January 23, 2017, police officers interrogated Petitioner for 13 minutes
before finally reading Petitioner a Miranda warning. E.g., Ezeka, 946 N.W.2d at 399.
Before the reading of a Miranda warning, police officers badgered Petitioner, telling
him, inter alia:
[I]f you could explain to us what happened and give us some explanation
about what happened… [it] is gonna go a long way for you… We’re
giving you opportunity Josh. This might be your only opportunity
21
to talk about this because… they might not put you on the stand
because, they can bring up a bunch of old shit, so this might be
your only opportunity to get your story out.
App. 107 (emphasis added). The police officers insinuated that Petitioner was
behaving as if he was guilty, stating, “I can sense you, I can sense you’re being
remorseful right now. I can sense that Josh….” App. 109. The police officers
mentioned the names of the people who Petitioner was allegedly shooting at. See App.
108 (mentioning “Sto”).
The detectives gave Petitioner bad legal advice by insinuating that this was
the only chance he would have to tell his story, and by indicating a confession may
lead to prosecutorial leniency. Ezeka, 946 N.W.2d at 411 (Anderson, J., dissenting)
(“The investigators provided Ezeka with the false legal advice that speaking with
them might be Ezeka’s ‘only opportunity to get [his] story out’ because he might be
barred from testifying at trial. This conduct by the investigators is troubling because
‘giving false legal advice’ is one of the deceptive stratagems that contributes to the
coercive nature of custodial interrogations.”) (citing Miranda, 384 U.S. at 455)
(footnote omitted); Ezeka, 946 N.W.2d at 412 (Anderson, J., dissenting) (“the
investigators also suggested that an admission could lead to leniency from the
prosecutor”); App. 106-111.
Justice Thissen also noted and took issue with the coercive conduct of the police
officers, stating:
The same investigators who interrogated Ezeka in January
2017 blatantly ignored a plain request to remain silent and
22
speak to a lawyer during the June 2016 interrogation; …
immediately prior to the January 2017 interrogation, Ezeka was
apprehended after six officers with guns drawn entered his girlfriend's
bedroom where he and his girlfriend were together; the police failed to
immediately give Ezeka a Miranda warning at the beginning of the
January 2017 interrogation; and multiple times during the January
2017 interrogation one investigator refused to allow the other
investigator to read Ezeka his Miranda rights, including at least
one instance where the investigator expressly waived off the
Miranda rights. Notably, the district court expressly found that one
investigator “appeared anxious to keep [Ezeka] from saying anything
substantive about the case until the Miranda warning had been read.”
But the warning kept being delayed. That is simply impermissible
conduct.
Ezeka, 946 N.W.2d at 420 (Thissen, J., dissenting) (emphasis added) (footnote
omitted). Justice Thissen continues, stating:
Based on those experiences, Ezeka argues, he had no reason to
believe that the investigators would honor a future request to speak with
a lawyer or a refusal to talk to police. Stated another way, Ezeka
argues that he perceived the promise that the investigators
would allow him to remain silent to be meaningless because,
based on his relevant and immediate experience, the
investigators simply would not honor that right and would
continue to interrogate him until he confessed. If true, that is
unquestionably a coercive interrogation; indeed, it is the
definition of one.
Id. (emphasis added). In light of these coercive pressures, Justice Thissen concluded
“that the State did not carry its burden of proving that, under the circumstances just
described, Ezeka was not deprived of his ability to make an unconstrained and wholly
autonomous decision to speak.” Id. (alteration in original) (citation omitted). Justice
Thissen supported this conclusion, stating:
In this case, during those 13 [pre-Miranda] minutes, the
investigators—the same investigators who had completely ignored
Ezeka’s right to remain silent and to counsel just months before—
23
refused multiple times to provide a Miranda warning, ignoring the
underlying constitutional promises that an individual will not be forced
by the State to testify against himself. In that broader context of his
prior experiences, Ezeka likely would feel isolated and hopeless; a fact
the investigator played upon by delaying and waving off efforts to inform
Ezeka of his constitutional rights.
The investigators easily could have read Ezeka his Miranda rights
at the start of the custodial interrogation. Had the officers done so, the
course and experience of the interrogation would have been different.
The State offers no explanation as to why the detectives failed to
immediately give the warning. Notably, in our long series of cases
dealing with questions of coercion and the voluntariness of a
confession, there are very few examples of a custodial
interrogation where the police did not provide a Miranda
warning before the interrogation. Indeed, in several cases, we noted
that the suspect was advised multiple times of his Miranda rights
during an interrogation.
Ezeka, 946 N.W.2d at 421 (Thissen, J., dissenting) (emphasis added); see also id. at
422 (“The State presented—and the district court found—no evidence, either specific
to Ezeka or based on broader social science research, to demonstrate that Ezeka was
more likely to withstand coercive police techniques because of his history with law
enforcement than another suspect without the same history.”) (footnote omitted).
In response to the police officers’ interrogation, and prior to the police giving
Petitioner a Miranda warning, Petitioner involuntarily blurted out: “So about this
person that’s in this gold car that I shooting at, what’s his name, you said, Sto?” App.
110; see App. 89. Petitioner’s statement was an involuntary confession. App. 89 (the
trial court acknowledges this statement was a “pre-Miranda inculpatory statement”);
App. 110 (The investigators did not inform Petitioner that his pre-Miranda confession
could not be used against him, and Petitioner had no reason to believe that this
24
confession would not later be admissible). Because Petitioner’s initial confession
occurred before the issuance of a Miranda warning, the trial court and Minnesota
Supreme Court violated this Court’s precedent by failing to suppress Petitioner’s
unwarned admission. See Elstad, 470 U.S. at 307; see also App. 88-89.
Similarly, because the police officers who interrogated Petitioner did not advise
Petitioner of his right to remain silent or of his right to counsel at the outset of the
custodial interrogation on January 23, 2017, the trial court’s statement—that it “is
not persuaded that any of the detectives’ statements to [Petitioner] prior to the giving
of the Miranda warning were so coercive that [Petitioner]’s will was overborne at the
time he made his confession”— is repugnant to this Court’s precedent set forth in
Miranda, Davis, Edwards, Elstad, and Seibert. See 28 U.S.C. § 1257.
The trial court paid no regard to Davis or Elstad, and this is demonstrated by
the trial court’s failure to acknowledge that a Miranda violation is a significant factor
pointing towards Petitioner’s confession being involuntary. Likewise, a majority of
the Minnesota Supreme Court failed to recognize the meaningful parallels between
the facts of Seibert and Petitioner’s case. See Ezeka, 946 N.W.2d at 422-23 (Thissen,
J., dissenting) (juxtaposing the facts of Seibert with those of Petitioner’s case).
Consequently, Minnesota’s decision in Petitioner’s case is contrary to this Court’s
clearly established precedent; Minnesota was confronted with a set of facts in
Petitioner’s case that is materially indistinguishable from this Court’s Seibert
decision, but Minnesota nevertheless arrived at a different result than this Court’s
25
precedent. See Williams v. Taylor, 529 U.S. 362, 405-06 (2000) (“A state-court decision
will also be contrary to this Court’s clearly established precedent if the state court
confronts a set of facts that are materially indistinguishable from a decision of this
Court and nevertheless arrives at a result different from our precedent.”).
For all these reasons, Minnesota’s legal conclusions regarding the suppression
or voluntariness of Petitioner’s incriminating custodial statements are repugnant to
the Constitution or the laws of the United States. The State’s judicial decisions must
be vacated, and the State must be ordered to provide Petitioner a new trial that
accords with Petitioner’s constitutional rights.
B. The Admission of Petitioner’s Confession Violates Petitioner’s
Right to Counsel Under the Sixth Amendment
The Sixth Amendment guarantees that “[i]n all criminal prosecutions, the
accused shall enjoy the right ... to have the Assistance of Counsel for his defence.”
U.S. Const., amend. VI. This Court’s cases “have long recognized that the right to
counsel attaches only at or after the initiation of adversary judicial proceedings
against the defendant.” United States v. Gouveia, 467 U.S. 180, 187-88 (1984).
Importantly, “the right to counsel [under the Sixth Amendment] does not depend
upon a request by the defendant.” Brewer v. Williams, 430 U.S. 387, 404 (1977)
(citations omitted).
In Gouveia, the Court also acknowledged:
Although we have extended an accused’s right to counsel to certain
“critical” pretrial proceedings, … we have done so recognizing that at
those proceedings, “the accused [is] confronted, just as at trial, by the
26
procedural system, or by his expert adversary, or by both,” … in a
situation where the results of the confrontation “might well settle the
accused’s fate and reduce the trial itself to a mere formality.”
Gouveia, 467 U.S. at 189 (citations omitted).
Here, Petitioner was interrogated by police on the same day that charges were
filed against him by the prosecution, thereby initiating adversary judicial
proceedings. See Ezeka, 946 N.W.2d at 399. The time stamps on the initial complaint
and the video of Petitioner’s custodial interrogation confirm that proceedings
commenced before Petitioner’s custodial interrogation. Cf. App. at 167 (judge found
probable cause and issued an arrest warrant at 9:43 AM on Jan. 23, 2017) with App.,
Video (Jan. 23, 2017) (custodial interrogation begins at 1:46 PM on Jan. 23, 2017);
Minn. R. Crim. P. 2.01 (criminal proceedings commence upon a judge’s determination
that sufficient probable cause exists, following the filing of a complaint, to charge a
defendant with an offense). On January 23, 2017, Petitioner was confronted, just as
he would be at trial, by his expert adversary, who used the procedural system against
him to coerce an involuntary confession.3 See App. 109, 110. Petitioner confessed
immediately after this confrontation, thereby rendering the trial itself a mere
formality. See id. at 110-15.
3 Q: “… This is something we could’ve just had you arrested and booked you in jail on
your warrant and then you have your first appearance and all that stuff. This is kind
of your opportunity to tell your side because right now it’s everybody else telling what,
what happened to them but they’re also telling what Josh did or saying why Josh did
it. But this is something you wanna speak on your own behalf. This is your opportunity.
… The prosecutor, I think will entertain an explanation of what happened…”
27
Under these circumstances, the Sixth Amendment’s right to counsel, as
interpreted by Gouveia and its predecessors, compels the suppression of Petitioner’s
custodial statements made on January 23, 2017. Accord United States v. Wade, 388
U.S. 218, 224 (1967); United States v. Ash, 413 U.S. 300, 310 (1973); Fellers v. United
States, 540 U.S. 519 (2004) (holding that “the Court of Appeals erred in holding that
the officers’ actions did not violate the Sixth Amendment standards established in
Massiah… and its progeny” because “the officers in this case ‘deliberately elicited’
information from petitioner… after petitioner had been indicted, outside the presence
of counsel, and in the absence of any waiver of petitioner’s Sixth Amendment rights”)
(citing Massiah v. United States, 377 U.S. 201, 206 (1964)). By failing to suppress
Petitioner’s custodial statements, Minnesota violated Petitioner’s Sixth Amendment
right to counsel. See generally Brewer, 430 U.S. at 401 (“once adversary proceedings
have commenced against an individual, he has a right to legal representation when
the government interrogates him.”) (citation and footnote omitted).
Minnesota
made no effort
to
prove that Petitioner “intentional[ly]
relinquish[ed] or abandon[ed] [his] known” Sixth Amendment right to have counsel
present at all critical stages of proceedings, including his post-charging interrogation,
and Petitioner never voluntarily relinquished or abandoned his Sixth Amendment
rights. See id. at 404 (quoting Johnson v. Zerbst, 304 U.S. 458, 464 (1938)).
28
i.
Exhaustion and Plain Error Review
Unfortunately, the Sixth Amendment violation in Petitioner’s case was never
spotted by Petitioner’s trial or appellate counsel, ostensibly due to the myriad other
constitutional problems Petitioner’s case presented. It may therefore be argued that
Petitioner procedurally defaulted his Sixth Amendment claims by failing to bring
them to the attention of the state trial or appellate courts. However, such a holding
would offend every notion of fundamental fairness, especially in a case such as this
one which involves a sentence of life without the possibility of parole.
Minnesota’s failure to suppress Petitioner’s custodial statement in accordance
with the mandates of the Sixth Amendment is reviewable for plain error
notwithstanding Petitioner’s counsels’ failure to bring the issue to the attention of
the state courts. E.g., United States v. Olano, 507 U.S. 725, 734 (1993); Fed. R. Crim.
P. 52(b); Fed. R. Crim. P. 1(a) (Fed. R. Crim. P. 52(b) applies “in all criminal
proceedings in the… Supreme Court of the United States.”); see also Terminiello v.
Chicago, 337 U.S. 1 (1949) (the Court reversed a state criminal conviction on a ground
not urged in state court, nor even in this Court); Vachon v. New Hampshire, 414 U.S.
478, 479 n.3 (1974) (the Court summarily reversed a state criminal conviction on the
ground, not raised in state court, or here, that it had been obtained in violation of the
Due Process Clause of the Fourteenth Amendment and noted that it possessed the
discretion to ignore the failure to raise in state court the question on which it decided
the case before the Court).
29
This issue is appropriate for plain error review because it raises a purely
federal question entirely dependent on the Sixth Amendment of the Constitution.
Review by this Court, for plain error, is proper because the issue presented relates to
a federal constitutional error and does not implicate any error of state law.
Additionally, Petitioner’s Sixth Amendment right to counsel claim is simply an
enlargement of Petitioner’s arguments lodged in the state courts regarding
Petitioner’s right to counsel under the Fifth Amendment and the necessity of
suppressing Petitioner’s custodial statements. As such, an adequate record exists to
allow for meaningful review. See Cardinale v. Louisiana, 394 U.S. 437, 439 (1969).
Because the circumstances surrounding Petitioner’s right to counsel have been
adequately fleshed out in the lower courts, and because Petitioner does not seek to
expand any constitutional rights, review by this Court is appropriate. See id. at 43839; see also United States v. Atkinson, 297 U.S. 157, 160 (1936) (“In exceptional
circumstances, especially in criminal cases, appellate courts, in the public interest,
may, of their own motion, notice errors…”). Similarly, Petitioner has argued
throughout that he was deprived of his constitutional right to counsel; counsels’
failure to specify the Sixth Amendment version of this right does not render review
by this Court impracticable.
ii.
The State’s Failure to Suppress Petitioner’s Custodial Statements
Constitutes Reversible Error
Because Petitioner was subjected to custodial interrogation after being
formally charged, and because he never waived his Sixth Amendment right to
30
counsel, and because the January 23, 2017 custodial interrogation during which
police officers deliberately elicited information from Petitioner was a critical stage of
proceedings, the State’s failure to suppress Petitioner’s statements from that
custodial interview was an error. See Olano, 507 U.S. at 734.
This Court’s jurisprudence regarding the Sixth Amendment’s right to counsel
provides strong support for the conclusion that this error was clear or obvious. See
id.; e.g., Fellers, 540 U.S. at 523-24.
This clear or obvious error affected Petitioner’s substantial rights. But for the
State’s failure to suppress Petitioner’s January 23, 2017 custodial statements, the
charges lodged against Petitioner would never have been elevated from intentional
(second-degree) murder to premeditated (first-degree) murder; but for Petitioner
being charged with premeditated murder, he could not have possibly been sentenced
to more than 40 years of imprisonment for the murder. E.g., Minn. Stat. § 609.19.
Tangentially, had the State properly suppressed Petitioner’s custodial statements, it
is more likely than not the State would have offered Petitioner a fair plea deal for
second-degree murder instead of insisting on a trial (the State never offered a plea
deal). The severe consequences that flowed from the error of admitting Petitioner’s
custodial statements in violation of Petitioner’s Sixth Amendment rights prove
beyond a shadow of a doubt that Petitioner’s substantial rights were affected.
Because Petitioner has established that a plain error has occurred, this Court
has the discretion to consider the aforementioned Sixth Amendment violation if it
31
determines that the failure to do so would result in a miscarriage of justice. E.g.,
Olano, 507 U.S. at 736. An exercise of discretion under Rule 52(b) is warranted if the
plain error “seriously affect[s] the fairness, integrity or public reputation of judicial
proceedings.” Id. (citation omitted). “An error may ‘seriously affect the fairness,
integrity or public reputation of judicial proceedings’ independent of the defendant’s
innocence.” Id. at 736-37.
Petitioner is actually innocent of premeditated murder, and his custodial
statements indicate he may also be innocent of intentional second-degree murder. See
App. 113 (“I didn’t intend to kill nobody, I intend to scare this person…”). Petitioner
denies intending to shoot anyone; he told police that he was only trying to scare
someone who he thought was going to shoot up his house. Id. Allowing Petitioner’s
conviction and sentence for premeditated murder to stand would be a miscarriage of
justice; this is particularly true in light of the Sixth Amendment violation that led to
Petitioner’s charges being upgraded from second-degree intentional murder to firstdegree premeditated murder. Cf. App. 164-67 with App. 173-75. The State’s failure
to suppress Petitioner’s custodial statements seriously affected the fairness and
integrity of Petitioner’s judicial proceedings. This error casts immense doubt as to
whether Minnesota can prove beyond a reasonable doubt that Petitioner intentionally
murdered anyone, much less with premeditation. If this error is allowed to stand
uncorrected, the integrity and public reputation of judicial proceedings will suffer.
32
The Court should exercise its discretion under Rule 52(b) to review and reverse
the State’s erroneous failure to suppress Petitioner’s custodial statements.
IV.
Minnesota’s “Clear and Obvious” Plain Error Test is Repugnant to
the Constitution or the Laws of the United States
Under Minnesota law, “[a] defendant forfeits appellate review of a jury-
instruction issue when he fails to object to the instruction in the district court.” Ezeka,
946 N.W.2d at 407 (citation omitted). However, appellate courts “have the discretion
to consider a forfeited issue if the defendant establishes (1) an error, (2) that is plain,
and (3) that affects his substantial rights.” Id. (citation omitted). “The error
requirement is satisfied when the jury instructions confuse, mislead, or materially
misstate the law.” Id. An error is plain if it is “clear” or “obvious.” State v. Burg, 648
N.W.2d 673, 677 (Minn. 2002) (quoting United States v. Olano, 507 U.S. 724, 734
(1993)). “A defendant’s substantial rights are affected when there is a reasonable
likelihood that the giving of the instruction in question had a significant effect on the
jury verdict.” Ezeka, 946 N.W.2d at 407 (citation and internal quotations omitted). If
all three elements are established, state appellate courts “may correct the error only
if it seriously affects the fairness, integrity, or public reputation of judicial
proceedings.” State v. Mouelle, 922 N.W.2d 706, 718 (Minn. 2019).
Minnesota’s standard for plain error review under Minn. R. Crim. P. 31.02 is
“materially indistinguishable” from Fed. R. Crim. P. 52(b)’s standards for plain error
review, and Minnesota incorporates this Court’s jurisprudence regarding Fed. R.
Crim. P. 52(b) into every State analysis under Minn. R. Crim. P. 31.02. See State v.
33
Beaulieu, 859 N.W.2d 275, 279 (Minn. 2015) (“Rule 31.02 is based on Fed. R. Crim.
P. 52(b)”) (citing, via n.4, Minn. R. Crim. P. 31 cmt.–1990). As such, if this Court
determines that plain error occurred, it follows that Minnesota, upon reviewing the
same set of facts, should have reached the identical result. See Williams v. Taylor,
529 U.S. 362, 405-06 (2000). As such, if this Court determines that the jury
instruction challenged by Petitioner is plainly erroneous, Minnesota’s failure to do so
below is necessarily repugnant to the laws of the United States.
At issue is the trial court’s jury instruction as to the elements of premeditated
murder. This instruction combined aiding and abetting liability and the underlying
elements of premeditated murder, but trial counsel failed to object to the instruction.
See Ezeka, 946 N.W.2d at 408; Olano, 507 U.S. at 734. On review, the Minnesota
Supreme Court determined that the challenged jury instruction was erroneous and
was likely to mislead or confuse the jury. Ezeka, 946 N.W.2d at 407-08.4 However, it
determined the error was not plain. See id.
4 After reviewing the jury instructions as a whole, we conclude that the district
court erred when it instructed the jury on aiding and abetting liability. There
was no evidence that Ezeka acted as an accomplice, and the State's theory at trial was
that Ezeka was the shooter and, therefore, directly liable for his actions as a principal.
Consequently, there was no need for the district court to instruct the jurors on an
aiding and abetting theory of criminal liability.
In addition, the district court used confusing and misleading language to
describe this unnecessary theory of criminal liability. For example, in
instructing the jurors that the State needed to prove “[Ezeka], or someone he
intentionally aided and abetted, acted with premeditation,” the district court's use of
the word “acted” allowed the jury to find Ezeka guilty of premeditated murder if the
State proved either that Ezeka fired the shots with premeditation or that Scott ordered
the hit with premeditation. To be clear, if Ezeka fired the shots with premeditation,
his liability as the principal could have been extended to Scott under an aiding-and-
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Minnesota violated its own precedents and this Court’s precedents by
pondering whether the erroneous jury instruction’s erroneousness “was clear and
obvious.” Id. (emphasis added).
This Court has repeatedly held that an error is plain if the error is “clear” or
“obvious.” See, e.g., Olano, 507 U.S. at 734. Minnesota’s plain error analysis has
explicitly incorporated Olano into its own precedent. E.g., State v. Burg, 648 N.W.2d
673, 677 (Minn. 2002); Ezeka, 946 N.W.2d at 407 (“An error is plain if it is ‘clear’ or
‘obvious.’ ”) (citation omitted).
Minnesota’s plain error standard of review “rest[s] on federal law.” E.g.,
Kansas v. Marsh, 548 U.S. 163, 169 (2006). This is made forcefully clear by the
observation that two of Minnesota’s seminal cases regarding plain error review both
cite this Court’s Olano decision to establish that “ ‘plain’ is synonymous with ‘clear’
or… ‘obvious.’ ” See State v. Ihle, 640 N.W.2d 910, 917 (Minn. 2002); Burg, 648 N.W.2d
at 677; see also State v. Kelly, 855 N.W.2d 269, 273 (Minn. 2014) (“The three
requirements that an appellant must satisfy under the plain-error doctrine were first
articulated in… Olano, … and later clarified in Johnson v. United States, 520 U.S.
461, 466–67 … (1997). We adopted those requirements in State v. Griller, 583 N.W.2d
736, 740 (Minn. 1998).”) (citing Johnson, 520 U.S. at 467). Because Minnesota’s plain
abetting theory of criminal liability because Scott procured Ezeka to commit the crime.
See Minn. Stat. § 609.05, subd. 1. But Scott's premeditation in ordering the hit cannot
be used to satisfy a necessary element of the principal crime, namely Ezeka's
premeditation in firing the shots.
Ezeka, 946 N.W.2d at 408 (emphasis added).
35
error standard of review rests upon federal law, Minnesota’s interpretation of Minn.
R. Crim. P. 31.02 does not constitute an independent state ground barring this
Court’s review under 28 U.S.C. § 1257. Minnesota’s interpretation of Minn. R. Crim.
P. 31.02 is circumscribed by this Court’s jurisprudence of Fed. R. Crim. P. 52, and
will remain so until Minnesota unmoors itself from Olano and Johnson.
Minnesota correctly stated that the “clear or obvious” test was applicable, see
946 N.W.2d at 407, but it expressly utilized a more deferential “clear and obvious”
test in Petitioner’s case. Id. at 408. The State failed to properly apply its own law,
thereby rendering inadequate any independent state grounds for affirming the
sufficiency of the jury instruction, even if the State possesses the inherent authority
to craft a more deferential standard of review for “plain error” than was expounded
by this Court in Olano. See 507 U.S. at 734. Because Minnesota failed to apply the
correct legal test mandated under its own law, and because this failure prejudiced
Petitioner, the State’s conduct deprived Petitioner of his right to due process. This
conclusion is buttressed by the observation that the Minnesota Supreme Court
provided no justification or reasoning for switching from the “clear or obvious” test to
the “clear and obvious” test, which indicates the court failed to understand the
existence or importance of its own mistake.
Setting aside the State’s failure to properly apply its own law under Minn. R.
Crim. P. 31.02, the State’s decision effectively overruled this Court’s Olano precedent
in Minnesota by transmuting Olano’s “clear” or “obvious” test into a “clear and
36
obvious” test. Ezeka, 946 N.W.2d at 408 (“we consider whether the error was clear
and obvious.”); see Williams, 529 U.S. at 405 (“A state-court decision will certainly be
contrary to our clearly established precedent if the state court applies a rule that
contradicts the governing law set forth in our cases.”). “Like the miscarriage-of-justice
rule that the Court rejected in Olano, [Minnesota]’s [clear and obvious] standard is
unduly restrictive.” Rosales-Mireles v. United States, 138 S. Ct. 1897, 1906 (2018).
Because Minnesota’s newfangled “clear and obvious” test for plain error contradicts
the governing law outlined in Olano and incorporated into Minnesota law by State v.
Griller, the State’s decision in Petitioner’s case is contrary to this Court’s clearly
established precedent and is thereby repugnant to the laws of the United States. See
Williams, 529 U.S. at 405-06. Additionally, by turning this Court’s disjunctive “or”
test into a conjunctive “and” test, Minnesota impermissibly narrowed Olano in
violation of the Constitution’s Supremacy Clause. See U.S. Const., Art. VI, cl. 2.
Because it is clear or obvious that the trial court’s jury instructions regarding
the elements of premeditated murder were erroneous under this Court’s
jurisprudence, and because Minnesota’s analysis of this issue is governed by the same
standards as this Court, it follows that this Court should vacate and reverse the State
to the extent the State held that the challenged jury instruction was not plainly
erroneous. Additionally, if the Court determines that no reasonable jurist could
conclude that this error did not affect Petitioner’s substantial rights, the Court should
make this clear in a holding and remand to the State with instructions to engage in
37
the discretionary analysis that follows the finding of a plain error that affected a
defendant’s substantial rights.
REASONS FOR GRANTING THE PETITION
A. The Questions Presented Are Manifestly Important
“[T]he ready ability to obtain uncoerced confessions is not an evil but an
unmitigated good,” but this Court has also “recognized that the interrogation process
is ‘inherently coercive’ and that, as a consequence, there exists a substantial risk that
the police will inadvertently traverse the fine line between legitimate efforts to elicit
admissions and constitutionally impermissible compulsion.” McNeil, 501 U.S. at 181;
Moran v. Burbine, 475 U.S. 412, 426 (1986) (citation omitted).
Every state criminalizes murder, and penalties for premeditated murder are
of unparalleled severity. Police officers are known to pursue suspected murderers
aggressively, as they should, but officers often go too far, trampling on the
constitutional rights of the accused in the process of their investigation. The regular
use of overzealous coercive interrogation techniques by police officers investigating
serious crimes has unintended consequences (e.g., the suppression of important
custodial statements), and tends to increase the difficulty of obtaining a conviction.
Police officers must be made to understand the importance of providing
persons suspected or accused of crimes with a fresh Miranda warning at the outset of
the interrogation every time they subject a person to custodial interrogation. Officers
must be made to understand that the so-called “question-first” technique excoriated
38
in Seibert is completely inconsistent with Miranda and is never a permissible strategy
for eliciting a confession in the absence of counsel. More than 50 years have elapsed
since Miranda; there is no longer any reason to excuse the failure of police officers to
follow this Court’s unambiguous mandate. By clearly signaling to police officers that
the interrogation techniques used on Petitioner are unacceptable, this Court will
remind police to be more careful and thoughtful in the future to ensure that, when
confessions are obtained, they are usable. This will increase the efficacy and
admissibility of custodial interrogations while simultaneously decreasing the waste
associated with custodial interrogations that are later suppressed. It is of tantamount
importance for police to balance zealous investigation with the constitutional rights
of the accused.
Likewise, police must not be allowed to violate a criminal defendant’s Sixth
Amendment rights with impunity if the Sixth Amendment is to mean anything.
Police officers must be made to understand that a criminal defendant, once formally
charged, has the right to have an attorney present at all custodial interrogations
which occur after the filing of a complaint. Police must be made to understand that
they should let the prosecution direct the pace and timing of custodial investigations
once a complaint or indictment has issued.
Petitioner’s case typifies serious policing problems common to every state in
the Union. The policing problems identified in this petition are national problems
that require a national solution.
39
B. This Is an Optimal Vehicle for Review
This case presents a uniquely suitable vehicle for resolving the questions
presented. The outcome of this appeal—and the validity of Petitioner’s conviction and
subsequent sentence to life without the possibility of parole—turns cleanly on the
questions presented.
The trial court already determined that Petitioner unambiguously invoked his
right to counsel during the first custodial interrogation. The same officers who
interrogated Petitioner in June 2016 also interrogated Petitioner in January 2017,
meaning that the officers had actual notice of Petitioner’s prior invocation of his right
to counsel. During both interrogations, the police officers failed to provide a Miranda
warning at the outset of the custodial interrogation. During both interrogations, the
police applied unduly coercive pressure. During the second interrogation, the officers
admitted that they could have simply booked Petitioner into jail and allowed him to
attend his arraignment, but the officers refused to follow this sensible course of
action. During both interrogations, the officers attempted to elicit a waiver of
Petitioner’s Miranda rights through subtle and misleading questioning techniques
instead of simply asking Petitioner whether he was willing to waive his Miranda
rights. The officers knew that formal charges had already been filed against
Petitioner prior to the officers’ second interrogation. These multitudinous avoidable
errors by the police provide this Court with ample material for a pedagogical
exposition of the minimally acceptable standards governing custodial interrogations.
40
This case also has the benefit of a complete record. Every issue has been
adequately developed, and Petitioner’s case culminated in a jury trial. Minnesota’s
highest court weighed in and was deeply divided, which shows that the questions
presented by this case are narrow and well-suited for review by this Court. Three of
the seven justices on the Minnesota Supreme Court, or 42.857% of the court,
concluded that Petitioner’s confession was the product of unlawful police coercion.
Ezeka, 946 N.W.2d at 410-23. These dissenting opinions, along with their rationale,
are worthy of rumination.
No independent and adequate state ground presents an insuperable obstacle
to reversal. The issues presented will not become moot. Petitioner has exhausted his
claim. There are no impediments to this Court’s review in this case.
C. The State Courts’ Rulings Are Wrong
The State’s judicial decisions are wrong. All of Petitioner’s custodial
statements should have been suppressed. Petitioner should have been granted a new
trial. Petitioner incorporates by reference the arguments made by Justice Anderson
and Justice Thissen in their well-reasoned dissents, in addition to the arguments
made above. See Ezeka, 946 N.W.2d at 410-23.
CONCLUSION
The Court should grant the petition.
Respectfully submitted,
GLORIA CONTRERAS EDIN
Counsel of Record
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NICO RATKOWSKI
Contreras & Metelska, P.A.
200 University Avenue W.
Suite 200
Saint Paul, MN 55103
(651) 771-0019
gloria@contrerasmetelska.com
nico@contrerasmetelska.com
Counsel for Petitioner
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.