Appendix — Cate v. Anderson (No. 07-1436)
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3 (}) 071436 MAY 15 2008
In the Supreme Court of the USfRIGROAL EME CLERK
C. A. TERHUNE, Petitioner,
V.
JEROME ALVIN ANDERSON, Respondent.
ON PETITION FOR WRIT OF CERTIORARI TO THE
UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
APPENDIX
PETITION FOR WRIT OF CERTIORARI
EDMUND G. BROWN JR.
Attorney General of California
DANE R. GILLETTE
Chief Assistant Attorney General
MANUEL M. MEDEIROS
State Solicitor General
MICHAEL P. FARRELL
Senior Assistant Attorney General
DONALD E. DE NICOLA
Deputy State Solicitor General
RACHELLE A. NEWCOMB
Deputy Attorney General
STEPHEN G. HERNDON
Supervising Deputy Attorney General
Counsel of Record
1300 I Street, Suite 125
PO. Box 944255
Sacramento, CA 94244-2550
Telephone: (916) 327-0350
Fax: (916) 324-2960
Counsel for Petitioner
Appendix A
Appendix B
Appendix C
Appendix D
Appendix E
United States Court of
Appeals for the Ninth
Circuit, No. 04-17237, D.C.
No. CV-00-002494-WBS,
Opinion, filed February 15,
2008
United .States Court of
Appeals for the Ninth
Circuit, No. 94-17237, D.C.
No. CV-00-002494-WBS,
Opinion, filed November 8,
2006
In the United States District
Court for the Eastern
District of California, No.
CIV S-00-2404 WBS DAD P,
riaata224 &
Recommendations, filed
September 28, 2004
In the Court of Appeal of the
State of California, Third
Appellate District, No.
C030610, Opinion, filed
March 2, 2000
Superior Court of the State
of California, County of
Shasta, No. 97F5048,
Memorandum of Decision on
Motion to Suppress Evidence
and Motion in Limine;
Order, dated June 17, 1998
APPENDIX A
FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
JEROME ALVIN ANDERSON, No. 04-17237
Petitioner-Appellant,
D.C. No.
CV-00-002494-
WBS
C.A. TERHUNE, Warden, OPINION
Respondeni-A ppellee.
Appeal from the United States District Court
for. the Kastern District of California
William B. Shubb, Chief Judge, Presiding
Argued and Submitted
October 9, 2007—San Francisco, California
Filed February 15, 2008
Before: Mary M. Schroeder, Stephen Reinhardt,
Sidney R. Thomas, Barry G. Silverman,
M. Margaret McKeown, Kim McLane Wardlaw,
William A. Fletcher, Ronald M. Gould, Richard A. Paez,
Richard C. Tallman, Johnnie B. Rawlinson,
Richard R. Clifton, Consuelo M. Callahan, Carlos T. Bea,
and Sandra S. Ikuta, Circuit Judges.
Opinion by Judge McKeown;
Concurrence by Judge Silverman;
Partial Concurrence and Partial Dissent by Judge Bea;
Dissent by Judge Tallman
SUMMARY
Criminal Law and Procedure/Habeas Corpus
The court of appeals reversed a judgment of the
district court. The court held that a state court
unreasonably concluded that a defendant’s statements
that “I don’t even wanna talk about this no more,” and
“I plead the Fifth,” were ambiguous in context, and that
the interrogating officer’s retort—“Plead the Fifth.
What’s that?”—sought clarification.
Appellant Jerome Anderson, who was convicted of
special circumstance murder in California state court
and denied state post-conviction relief, petitioned for a
writ of habeas corpus in federal district court, claiming
that he was denied both his constitutional right to
remain silent and due process by the introduction of his
involuntary confession into evidence, and by the
exclusion of evidence of coercion in the interrogation
process. The state court concluded that Anderson’s
statements to police while in custody that “I don’t even
wanna taik about this no more,” and “I plead the Fifth,”
were ambiguous in context, and that the interrogating
officer’s retort—“Plead the Fifth. What’s that?—sought
clarification. Once Anderson stated “I’d like to have an
attorney present,” the interrogating officers stopped the
interrogation and turned the tape recorder off.
However, the officers subsequently concluded that
Anderson wanted to reinitiate the discussion, and after
three hours of further questioning, Anderson confessed.
The district court denied Anderson’s petition.
Anderson appealed.
[1] Under Miranda, if an individual indicates in
any manner, at any time prior to or during questioning,
that he wishes to remain silent, the interrogation must
cease. [2] “Context” cannot be manufactured by
straining to raise a question regarding the intended
scope of a facially unambiguous invocation of the right
to silence. [3] Nothing was ambiguous about the
statement “I plead the Fifth.” “Ambiguity” means
admitting more than one interpretation or reference or
having a double meaning or reference. [4] Anderson
did not equivocate in his invocation by using words such
as “maybe” or “might” or “I think.” Anderson had
already twice attempted to stop the police questioning
using crystal-clear language: “I don’t want to talk about
this no more,” and “Uh! I’m through with this,” and “I
wanna be taken into custody.” Saying that he wanted to
be taken into custody was an indication that Anderson
did not want to talk about the murder or anything else.
“Taking the Fifth” is as unequivocal as one can get in
invoking the ritht to rem iin silent.
[5] Police must scrupulously honor a suspect’s
right to remain silent by immediately ceasing
questioning when the suspect invokes this right. [6]
Instead of scrupulously honoring the request, the
interrogating officer decided to “play dumb” hoping to
keep Anderson talking by inquiring, “Plead the Fifth.
What’s that?” At best, the officer was mocking and
provoking Anderson. [7] No reasonable officer could
legitimately be in doubt about the meaning of “I plead
the Fifth.” The state court’s characterization was a
fanciful re-imagining of the colloquy between Anderson
and the officer, and under the Antiterrorism and
Effective Death Penalty Act (AEDPA), an unreasonable
determination of the facts. [8] Where the initial
request to stop the questioning is clear, the police may
not create ambiguity in a defendant’s desire by
continuing to question him or her about it. By parsing
Anderson’s invocation into specific subjects,.the police
failed to honor a decision of a person in custody to cut
off questioning. [9] The state court’s decision to ignore
an unambiguous declaration of the right to remain silent
was an unreasonable application of Miranda. The state
court’s labeling of Anderson’s statements as ambiguous
and characterizing the officer’s response as a legitimate
clarifying inquiry were unreasonable determinations of
fact.
[10] 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. [11] All
questioning must immediately cease once the right to
remain silent is invoked, and any subsequent statements
by the defendant in response to continued interrogation
cannot be used to find a waiver or cast ambiguity on the
earlier invocation. [12] The court of appeals could not
simply suppress the portion of the interrogation that
occurred after the invocation of the right to silence and
before Anderson’s purported re-initiation of the
interrogation. [13] The prejudice from Anderson’s
confession could not be soft pedaled, and the error was
not harmless. [14] The judgment of the district court
is reversed and the case had to be remanded with
instructions to grant the writ.
Judge Silverman concurred, writing separately to
state that, in its treatment of the state appellate court’s
ruling that Anderson’s statements were ambiguous in
context, the majority failed to observe that an
unreasonable application of federal law is different from
an incorrect application of federal law.
Judge Bea concurred in part, and dissented in part,
writing that, given that Anderson validly waived his
right to counsel and his right to remain silent before he
confessed, the admission of his confession was not error,
and the state appellate court’s denial of habeas relief
was not contrary to, nor an unreasonable application of,
clearly established federal law.
Judge Tallman dissented, writing that the majority
fixated on the words “plead the Fifth,” lifted in isolation
from a portion of the transcribed interview, without
giving the required level of deference to the trial court’s
findings of fact after an evidentiary hearing, which
included the entire tape recording and the testimony of
the interrogators; the state courts’ conclusion was not
unreasonable.
COUNSEL
Charles M. Bonneau (argued), Sacramento, California,
for the petitioner-appellant.
Rachelle A. Newcomb, Deputy Attorney General
(argued) and Edmund G. Brown, Jr., Attorney General;
Dane R. Gillette, Chief Assistant Attorney General;
Michael P Farrell, Senior Assistant Attorney General;
Stephen G. Herndon, Supervising Deputy Attorney
General; Brian R. Means, Deputy Attorney General;
Sacramento, California, for the respondent-appellee.
Peter C. Pfaffenroth (argued), Jeffrey T. Green, Harold
L. Rogers, Sidley Austin LLP, Washington, DC; Charles
D. Weisselberg, University of California School of Law
(Boalt Hall), Berkeley, California; David M. Porter,
Sacramento, California; Sheryl Gordon McCloud,
Seattle, Washington, for amicus curiae National
Association of Criminal Defense Lawyers.
OPINION
McKEOWN, Circuit Judge:
It is hkely that few Americans can profess fluency
in the Bill of Rights, but the Fifth Amendment is surely
an exception. From television shows like “Law &
Order” to movies such as “Guys and Dolls,” we are
steeped in the culture that knows a person in custody
has “the right to remain silent.” Miranda is practically
a household word. And surely, when a criminal
defendant says, “I plead the Fifth,” it doesn’t take a
trained linguist, a Ph.D., or a lawyer to know what he
means. Indeed, as early as 1955, the Supreme Court
recognized that “in popular parlance and even in legal
literature, the term ‘Fifth Amendment’ in the context of
our time is commonly regarded as being synonymous
with the privilege against self-incrimination.” Quinn v.
United States, 349 U.S. 155, 163 (1955); accord In re
Johnny V,, 149 Cal. Rptr. 180, 184, 188 (Cal. Ct. App.
1978) (holding that the statement “I’ll take the fifth”
was an assertion of the Fifth Amendment privilege).
More recently, the Court highlighted that “Miranda has
become embedded in routine police practice to the point
where the warnings have become part of our national
culture.” Dickerson v. United States, 530 U.S. 428, 443
(2000).
We granted a rehearing en banc” in this appeal
from the district court’s denial of Jerome Alvin
Anderson’s petition for writ of habeas corpus. Anderson
challenges his conviction of special circumstances
murder on the grounds that he was denied his
constitutional right to remain silent and that admission
of his involuntary confession into evidence violated his
right to due process. Specifically, Anderson claims that
he invoked his Fifth Amendment right to terminate his
police interrogation and that the police officer’s
continued questioning violated that right.
Anderson twice attempted to stop police
questioning, stating “I don’t even wanna talk about this
1. Anderson v. Terhune, 467 F.3d 1208 (9th Cir. 2006),
reh’g en banc granted, 486 F.3d 1155 (9th Cir. 2007).
no more,” and “Uh! I’m through with this.” After
questioning continued, Anderson stated unequivocally,
“IT plead the Fifth.” Instead of honoring this
unambiguous invocation of the Fifth Amendment, the
officer queried, “Plead the Fifth. What’s that?” and
then continued the questioning, ultimately obtaining a
confession. It is rare for the courts to see such a pristine
invocation of the Fifth Amendment and extraordinary
to see such flagrant disregard of the right to remain
silent. ‘
The state court held that Anderson’s statement, “I
plead the Fifth,” was ambiguous and that the officer
asked a legitimate clarifying question. Under even the
narrowest construction of the Antiterrorism and
Effective Death Penalty Act, 28 U.S.C. § 2254(d)
(“AEDPA”), the state court erred in failing to recognize
this constitutional violation. The continued questioning
violated: the Supreme Court’s bright-line rule
established in Miranda. Once a person invokes the
right to remain silent, all questioning must cease:
If the individual indicates in any manner, at any
time prior to or during questioning, that he wishes
to remain silent, the interrogation must cease. At
this point he has shown that he intends to exercise
his Fifth Amendment privilege; any statement
taken after the person invokes his privilege cannot
be other than the product of compulsion, subtle or
otherwise.
Miranda v. Arizona, 384 U.S. 436, 473-74 (1966); see
also Michigan v. Mosley, 423 U.S. 96, 103 (1975)
(explaining that once a defendant has invoked his right
to remain silent, that right must be “scrupulously
honored”) (quoting Miranda, 384 U.S. at 479).
An examination of the interrogation transcript”
reveals that the state court’s conclusion that Anderson’s
invocation was ambiguous was an unreasonable
application of Miranda and based on an unreasonable
determination of the facts. See 28 U.S.C. § 2254(d)(1),
(2). Only one reasonable conclusion can be gleaned from
his statements, especially his last declaration, “I plead
the Fifth”: Anderson invoked his right to remain silent
and wanted to end the interrogation. Constructing the
officer’s statement, “Plead the Fifth? What’s that?”, as
asking what Anderson meant is also an unreasonable
determination of the facts. Id. § 2254(d)(2). These
errors were not harmless and, accordingly, we reverse
the judgment of the district court and remand with
directions to grant the writ of habeas corpus.
I BACKGROUND
| Anderson and the victim, Robert Clark, were
friends. On the morning of July 9, 1997, a mutual
acquaintance, Patricia Kuykendall, discovered that her
car had been stolen. Anderson and Kuykendall
suspected that Clark was involved and later that
morning confronted him at Kuykendall’s house.
2. Anderson filed a motion requesting that the en banc
panel take judicial notice of the entire transcript of the
interrogation. We asked the parties to clarify whether either the
complete transcript or the audio tape of the interrogation was part
of the record before the state appellate court. The answer is
unclear, although it is undisputed that both were available to the
court. Thus, we consider both to be part of the record in this
appeal. Nonetheless, whether one considers the transcript of the
audio tape, the result is the same.
10
Kuykendal! began yelling at Clark, but Anderson
remained calm. When Clark denied that he stole the
car, he appeared edgy and nervous. As Kuykendall left
the room to call the police, Clark left the house.
Anderson and Kuykendall’s roommate, Abe Santos, left
ten minutes later, stating they were going to follow
Clark.
Clark’s body was discovered by the side of a road
later that afternoon. He had been shot in the head four
times. Investigators found a methamphetamine pipe
lying between Clark’s arm and body. A cigarette lighter
was resting on Clark’s stomach under his right hand.
Pieces of a partially-eaten hamburger and a fresh
cigarette butt were also near the body, as well as spent
.22 caliber shell casings.
The police asked Anderson to come in for an
interview two days later, July 11. During the interview,
Anderson explained that on the day of the murder he
saw Clark at Kuykendall’s apartment in the morning,
but that he and Santos left to buy some hamburgers,
after which they went to Santos’s father’s house and to
a car wash.
The police took Anderson into custody for a parole
violation on July 12. Four officers interviewed
Anderson for approximately three and a half hours.
Despite clear and repeated invocations of his right to
remain silent, the officer continued to question
Anderson about the murder:
O’Connor: You act like you’re cryin’ like a baby,
an’, you can’t cry for someone that
was no good... an’ you killed him for
1}
a good reason.
Anderson: No, way. I — You know what, I don’t
even wanna talk about this no more.
We can talk about it later or
whatever. I don’t want to talk about
this no more. That’s wrong. That’s
wrong.
O’Connor: Right now, you show your remorse.
Immediately after this exchange, the officer
continued to interrogate Anderson regarding his drug
use on the day of the murder, including whether
Anderson had used pipes. This questioning is
significant because the murder victim was found with a
pipe next to him. The entire conversation was about the
murder. In response to this questioning, Anderson
unambiguously indicated that he wanted to end the
interrogation by stating that he was “through with
this,” wanted to “be taken into custody” and “I plead
the Fifth.” The relevant portion of the transcript is so
extraordinary that it bears repeating.
Anderson: Ihavenothin’ to worry about, nothin’
to hide. That’s why I show no
remorse. Nothin’ to worry about,
nothin’ to hide. He was my friend,
- an’ there’s no way I would do it. No
way I would do it.
O’Connor: Were you high that day?
Anderson: No, sir. I — probably was later on.
Yes.
O’Connor:
Anderson:
O’Cornor:
Anderson:
O’Connor:
Anderson:
O’Connor:
Anderson:
O’Connor:
Anderson:
O’Connor:
Anderson:
O’Connor:
Anderson:
12
Did you have any dope with you that
... that day?
No, sir.
No, dope at all? What do you smoke
with?
I smoke with my . . . my fingers.
When y»u smoke your dope what do
you do with that? How do you smoke
that?
You smoke it with pipes and stuff like
that.
Okay. What kind of pipes?
Lines.
What kind of pipes?
N’ah ... I would —-I-
Well, what kind of pipes?
Uh! I’m through with this. I’m
through. I wanna be taken in
custody, with my parole...
Well, you already are. I wanna know
what kinda pipes you have?
I plead the [FJifth.
O’Connor:
Anderson:
O’Connor:
Anderson:
O’Connor:
Anderson:
©’Connor:
Anderson:
13
Plead the [F ]ifth. What’s that?
No, you guys are wrong. You guys are
wrong. You guys have -— I’ve tried to
tell you everything I know. As far as
I know, you guys are lying, uh,
making things up, extenuating and
that’s not right. It’s not right.
We’re not makin’ anything up.
Sir, sure you are.
What are we makin’ up?
You’re tellin’ me that I didn’t have
tears in my eyes.
Yeah.
You’re tellin’ me, okay, that, uh, uh,
Abe said I kilt (sic) him. That’s a lie.
The questioning continued until Anderson asked for
alawyer: “I’d like to have an attorney present.” At that
juncture, an officer turned off the tape recorder and,
somewhat suspiciously, following this hiatus, the officers
concluded that Anderson wanted to reinitiate the
discussion. The further questioning, which took place
over a three-hour period, led to a confession by
Anderson.
Anderson was convicted of special circumstances
murder. On appeal, as in the trial court, he challenged
the adiiissibility of his confession, arguing that it was
14
obtained in violation of Miranda and of his Fifth
Amendment right to remain silent. ‘The California
Court of Appeal rejected Anderson’s argument. The
court concluded that Anderson’s invocation of his right
to remain silent was ambiguous and that the officer
asked a legitimate clarifying question when he
responded to Anderson’s statement, “I plead the
[Fjifth,” with “Plead the [FJifth. What’s that?” The
state appellate court reasoned that Anderson could have
been refusing to talk about his drug use, and did not
intend to terminate the interview. The state court
further held that Anderson waived any invocation of the
right to silence or to counsel when he re-initiated the
interrogation after the officers turned of the tape.
Il. STANDARD OF REVIEW
Under AEDPA, a writ of habeas corpus may not be
granted unless the state court’s decision (1) resulted in
a decision that was contrary to, or involved an
unreasonable application of, clearly established federal
law, as determined by the Supreme Court of the United
States; or (2) resulted in a decision that was based on an
unreasonable determination of the facts in light of the
evidence presented in the state court proceeding. 28
U.S.C. § 2254(d)(1), (2). Although this standard
requires us to give considerable deference to the state
courts, AEDPA deference is not a rubber stamp. See
Miller-Eil v. Dretke, 545 U.S. 231, 240, 265 (2005)
(refusing to accept a state court’s “dismissive and
strained interpretation” of the prisoner’s evidence on
habeas review and, noting that “[dJeference does not by
definition preclude relief”). The state court decision
here collides with AEDPA on all grounds. It reflects
both an unreasonable application of Miranda, which is
15
clearly established federal law, and an unreasonable
determination of the facts.
II. IN CONTRAVENTION OF MIRANDA, THE
STATE COURT UNREASONABLY
CONCLUDED THAT ANDERSON’S
INVOCATION (“I PLEAD THE FIFTH”) WAS
AMBIGUOUS
[1] Following the issuance of Miranda in 1966 and
the literally thousands of cases that repeat its rationale,
we rarely have occasion to address a situation in which
the defendant not only uses the facially unambiguous
words “I plead the Fifth,” but surrounds that invocation
with a clear desire not to talk any more. The state court
accurately recognized that under Miranda, “if [an]
individual indicates in any manner, at any time prior to
or during questioning, that he wishes to remain silent,
the interrogation must cease,” 384 U.S. at 473-74, but
then went on to eviscerate that conclusion by stating
that the comments were “ambiguous in context”:
In the present case, the defendant’s comments were
ambiguous in context because they could have been
interpreted as not wanting officers to pursue the
particulars of his drug use as opposed to not
wanting to continue the questioning at all. By
asking defendant what he meant by pleading the
fifth, the officer asked a legitimate clarifying
question.
[2] Using “context” to transform an unambiguous
invocation into open-ended ambiguity defies both
common sense and established Supreme Court law. It
is not that context is unimportant, but it simply cannot
16
be manufactured by straining to raise a question
regarding the intended scope of a facially unambiguous
invocation of the right to silence. As the Supreme Court
has observed, in invoking a constitutional right, “a
suspect need not ‘speak with the discrimination of an
Oxford don.’” Davis v. United States, 512 U.S. 452, 459
(1994)” (quoting id. at 476 (Souter, J., concurring in
judgment)). Anderson would meet even this erudite
standard. Miranda requires only that the suspect
“indicate[] in any manner... that he wishes to remain
silent.” Miranda, 384 U.S., at 473-74.
{3] This is not a case where the officers or the court
were left scratching their heads as to what Anderson
meant.” Nothing was ambiguous about the statement
“I plead the Fifth.” Ambiguity means “admitting more
3. We acknowledge that Davis is an invocation of counsel
case under Miranda, not a Fifth Amendment right to silence case.
We rely on Miranda and Mosley, not Davis, as “clearly established”
law. See Evans v. Demosthenes, 98 F.3d 1174, 1176 (9th Cir. 1996)
(declining to address whether Davis applies to right to silence
cases). Nonetheless, the general principles from cases involving
the clarity of invocation of rights during custodial interrogation are
instructive as to common sense interpretation of language.
4. The trial court stated, “while the defendant articulated
words that could, in the isolation [sic], be viewed as an invocation
of his right to remain silent, the defendant did not intend to
terminate the interview.” (emphasis added). Similarly, the state
court of appeal stated, “In the present case, the defendant's
comments were ambiguous in context because they could have
been interpreted as not wanting officers to pursue the particulars
of his drug use as opposed to not wanting to continue the
questioning at all.” (emphasis added). Obviously, the court
recognized that “I plead the Fifth” was an invocation of the right
to silence; it detected ambiguity only as to the scope of the
invocation. }
17
than one interpretation or reference” or “having a
double meaning or reference.” The New Shorter Oxford
' English Dictionary (1993). Even if the preliminary
statements “I don’t even wanna talk about this no
more” and “I’m through with this. I’m through. I
wanna be taken in custody,” were viewed as somewhat
equivocal—a dubious conclusion at best—“I plead the
Fifth” left no room for doubt. |
As we recently observed, “neither the Supreme
Court nor this court has required that a suspect seeking
to invoke his right to silence provide any statement
more explicit or more technically-worded than ‘I have
nothing to say.’” Arnold v. Runnels, 421 F3d 859, 865
(9th Cir. 2005). We went on to underscore that Arnold’s
statement easily met the Fifth Amendment standard:
“Indeed, it is difficult to imagine how much more clearly
a layperson like Arnold could have expressed his desire
to remain silent.” Jd. at 866.
[4] Anderson did not equivocate in his invocation
by using words such as “maybe” or “might” or “I think.”
See id. at 865-66 (distinguishing cases in which the
court concluded that a qualified invocation was
ambiguous from cases in which the invocation of the
right to silence was specific and unambiguous). Nor was
there anything ambiguous in Anderson declaring, “I
plead the Fifth.” Anderson had already twice attempted
to stop the police questioning using crystal-clear
language: “I don’t want to talk about this no more” and
“Uh! I’m through with this. I’m through. I wanna be
taken into custody ....” Saying that he wanted to be
taken into custody was an indication that Anderson did
not want to talk about the murder, his drug use, or
anything else. Thus, the state court was unreasonable
18
in concluding that the invocation was ambiguous in
context because the context, in fact, makes it clear that
Anderson wanted to end the interrogation in all
respects. Anderson had the right to end the
interrogation at any point and the fact that Anderson
had answered the officers’ questions for over two hours
does not somehow undermine or cast doubt on an
unambiguous invocation. Whether these were
“statements of frustration,” as the government posited
at oral argument, misses the point. A suspect can both
be frustrated with an interrogation and seek to
terminate it. “Taking the Fifth” is as unequivocal as
one can get in invoking the right to remain silent.
IV. THE STATE COURT’S CONCLUSION THAT
THE OFFICER ASKED A LEGITIMATE
CLARIFYING QUESTION WAS AN
UNREASONABLE DETERMINATION OF
THE FACTS
[5] Anderson’s unambiguous, unequivocal
invocation should have brought an immediate end to
questioning. Notably, the Supreme Court’s
commitment to Miranda’s fundamental tenet—that
police must “scrupulously honor{]” a suspect’s right to
remain silent by immediately ceasing questioning when
the suspect invokes this right, 384 U.S. at 479 (emphasis
added)-—has never wavered. See Mosley, 423 U.S. at 103
(Miranda’s “critical safeguard” is a “person’s ‘right to
cut off questioning’”); see also Arizona v. Roberson, 486
U.S. 675, 683 (1988); Kolender v. Lawson, 461 U.S. 352,
368 n.6 (1983) (Brennan, J., concurring; cf. Dickerson,
530 U.S. at 440 (reaffirming constitutional requirement
that “the exercise of [Miranda] rights must be fully
honored”).
19
[6] Instead of scrupulously honoring the request,
the interrogating officer decided to “play dumb,” hoping
to keep Anderson talking by inquiring, “Plead the Fifth.
What’s that?” This effort to keep the conversation
going was almost comical. At best, the officer was
mocking and provoking Anderson. The officer knew
what “I plead the Fifth” meant. It is thus baffling that
the state court determined that “[bly asking defendant
what he meant by pleading the Fifth, the officers asked
a legitimate clarifying question.” The need for
clarification presumes some ambiguity or uncertainty.
Nothing needed clarification.
This situation brings to mind the phrase attributed
to a Canadian judge—“won’t take no for an answer’—and
- later popularized in county music as “What part of ‘no’
don’t you understand?”? What about the words “I plead
the Fifth” is unclear, ambiguous, or confusing to a
reasonable officer? Nothing. See Connecticut v. Barrett,
479 U.S. 523, 529 (1987) (holding in the context of the
invocation of the right to counsel that “[iJnterpretation
is only required where the defendant’s words,
understood as ordinary people would understand them,
are ambiguous”). Rather, the officer hoped Anderson
would explain more about the murder, the exact topic
Anderson did not want to talk about. The officer
thought that continuing the interrogation was
“reasonably likely to elicit an incriminating response”
from Anderson. Rhode Island v. Innis, 446 U.S 291, 303
5. See The Phrase Finder, What part of no don’t you
understand?, http://www.phrases.org.uk/meanings/what-part-of
no. htm] (last visited Nov. 30, 2007); LORRIE MORGAN, What
Part of No (words and music by Wayne Perry and Gerald Smith),
on WATCH ME (BNA Records 1992).
(1980). And he was right.
In the right-to-counsel context, the Supreme Court
has countenanced clarifying questions only to ascertain
whether a suspect’s ambiguous or equivocal statement
is actually an invocation of his Fifth Amendment right.
See Davis, 512 US. at 461; Miranda, 384 US. at 445
(focusing only on the threshold question of whether the
accused “indicate[d] in any manner that he d[id] not
wish to be interrogated” when deciding whether police
had honored the accused’s Fifth Amendment rights); cf.
Smith v. Illinois, 469 U.S. 91, 95 (1984) (holding that
“[t]his case concerns the threshold inquiry: whether
Smith invoked his right to counsel in the first
instance”). Ignoring this principle, the state court found
that the comments were ambiguous “because they could
have been interpreted as not wanting officers to pursue
the particulars of his drug use as opposed to not wanting
to continue the questioning at all.”
[7] The state court’s rationale collapses beneath its
own weight, because the officer’s comment showed that
the interrogating officers did not believe that
Anderson’s statement was ambiguous. The officer did
not ask Anderson what subject he did not want to
discuss; nor did any of his follow-up questioning address
this topic. Similarly, the officer did not ask him if he
wished to remain silent or whether he simply did not
want to talk about the drug issue. The officer did not
even ask Anderson what he meant. No reasonable
officer could legitimately be in doubt about the meaning
of “I plead the Fifth.” The state court’s characterization
is a fanciful re-imagining of the colloquy between
Anderson and the officer, and under AEDPA, an
unreasonable determination of the facts.
21
The state court’s conclusion that “[i]t was the
defendant, not the interrogators, who continued the
discussion,” ignores the bedrock principle that the
interrogators should have stopped all questioning.” A
statement taken after the suspect invoked his right to
remain silent “cannot be other than the product of
compulsion, subtle or otherwise.” Miranda, 384 U.S. at
474.
Finally, it makes no sense to split hairs and say that
maybe, just maybe, Anderson wanted to talk about the
murder and not about his drug use because, in fact, the
drug use was inextricably intertwined with the murder.
The victim’s body was found next to a
methamphetamine pipe. Anderson’s drug use that day
could well tie him to the murder. He was taken in for
questioning about the murder, not on a potential drug
charge.
It is precisely this kind of conjecture and hair-
splitting that the Supreme Court wanted to avoid when
it fashioned the bright-line rule in Miranda. Cf. Davis,
512 US. at 461 (noting that, where the suspect asks for
counsel, the benefit of the bright-line rule is the “clarity
and ease of application” that “can be applied by officers
in the real world without unduly hampering the
gathering of information” by forcing them “to make
difficult judgment calls” with a “threat of suppression if
they guess wrong”). No guess work was required here.
6. As the Third Circuit aptly stated, “[uJnder Miranda, the
onus was not on [the suspect] to be persistent in her demand to
remain silent. Rather, the responsibility fell to the law
enforcement officers to scrupulously respect her demand.” United
States v. Lafferty, 503 F3d 293, 304(3d Cir. 2007).
22
Under the state court’s application of Miranda and
its progeny, every time a suspect unequivocally invokes
the right to remain silent, the police can ask follow-up
questions to clarify whether he really, really wants to
invoke the right and to parse the subject matter—“what
“specifically do you not want to talk about?” Such a
practice is tantamount to endless re-interrogation.
The Sixth Circuit’s decision in McGraw v. Holland,
257 F.3d 513 (6th Cir. 2001), where the defendant
stated “I don’t want to talk about it,” illustrates the’
error of the state court’s approach:
In the criminal proceeding against Tina McGraw,
the state trial court declined to hold the confession
inadmissible under Miranda since TinA ‘never
demanded or requested to terminate the interview.’
Although Tina said that she did not want to talk
about the rape itself, in other words, her confession
that she assisted in the rape was held to be
admissible under Miranda because she never said
that she did not want to talk about subjects other
than the rape. This, in our view, was an
unreasonable application of Miranda and its
progeny.
Id. at 518.
Here, the state court’s loose paraphrasing of the
officer’s question—“Plead the [Fjifth. What’s that?”—as
“asking defendant what he meant by pleading the Fifth”
is unconvincing and an unreasonable determination of
the facts. As the transcript reveals, the officer did not
even pretend not to understand what Anderson meant.
Instead, incredibly, he feigned ignorance of the Fifth
Amendment.
[8] Where the initial request to stop the
questioning is clear, “the police may not create
ambiguity in a defendant’s desire by continuing to
question him or her about it.” Barrett, 479 U.S. at 535
n.5 (Brennan, J., concurring). By parsing Anderson’s
invocation into specific subjects, “the police failed to
honor a decision of a person in custody to cut off
questioning, either by refusing to discontinue the
interrogation upon request or by persisting in repeated
efforts to wear down his resistance and make him
change his mind.” Mosley, 423 U.S. at 105-06. The net
result is that such follow-up questions allowed the
officer to avoid honoring the Fifth Amendment and, as
in a right to counsel situation, enabled “the authorities
through ‘badgerling]’ or ‘overreaching’—explicit or
subtle, deliberate or unintentional-—[to] wear down the
accused and persuade him to incriminate himself.”
Smith, 469 US. at 98.
[9] Looking at this case through the AEDPA lens
of deference, as we must, does nothing to change these
conclusions. The state court’s decision to ignore an
unambiguous declaration of the right to remain silent is
un unreasonable application of Miranda, as was the
decision to allow continued questioning. See Runnels,
421 F.3d at 867. Finally, the state court’s labeling of
Anderson’s statements as ambiguous and characterizing
the officer’s response as a legitimate clarifying inquiry
were unreasonable determinations of fact.
24
V. THE STATE COURT’S DECISION WAS
CONTRARY TO SUPREME COURT
PRECEDENT BY FINDING A WAIVER
BASED ON ANDERSON’S RESPONSES TO
RE-INTERROGATION
[10] The state appellate court attempted to bolster
its conclusion about Anderson’s statements by claiming
that he waived his right to remain silent in continuing
to answer police questions after he stated, “I plead the
Fifth”:
[While words of invocation were spoken by the
defendant, the court concludes that, in any case, he
effectively waived the right to remain silent by what
followed. ... By continuing to talk to the police
officers, defendant demonstrated a willingness to
continue to discuss the case.
Put another way, the state court endorses the principle
that once the officers ignored Anderson’s unequivocal
invocation of the Fifth Amendment, their questioning
kept him talking and resulted in a waiver of his right to
remain silent. This analysis directly contravenes
Supreme Court precedent: “(U]nder the clear logical
force of settleD precedent, an accused’s postrequest
responses to further interrogation may not be used to
cast retrospective doubt on the clarity of the initial
request itself.” Smith, 469 U.S. at 100 (emphasis in
origina]).
[11] Smith mandates that all questioning must
immediately cease once the right to remain silent is
invoked, and that any subsequent statements by the
defendant in response to continued interrogation cannot
25
be used to find a waiver or cast ambiguity on the earlier
invocation. The Supreme Court’s somewhat lengthy
recitation of this principle is particularly instructive in
this case: |
Where nothing about the request for counsel or the
circumstances leading up to the request would
render it ambiguous, all questioning must cease. In
these circumstances, an accused’s subsequent
statements are relevant only to the question
whether the accused waived the right he had
invoked. Invocation and waiver are entirely distinct
inquiries, and the two must not be blurred by
merging them together. ...
With respect to the waiver inquiry, we accordingly
have emphasized that a valid waiver “cannot be
established by showing only that ithe accused]
responded to further police-initiated custodial
interrogation.” Using an accused’s subsequent
responses to cast doubt on the adequacy of the
initial request itself is even more intolerable. “No
authority, and no logic, permits the interrogator to
proceed... on his own terms and as if the
defendant had requested nothing, in the hope that
the defendant might be induced to say something
casting retrospective doubt on his initial statement
that he wished to speak through an attorney or not
at all.”
Id. at 98-99 (internal citations omitted) (emphasis,
alteration and second ellipsis in original).
We are not faced with a situation where there was
a break in questioning after the Miranda invocation.
26
Instead, police simply continued the conversation up to
the point that Anderson said, “Ud like to have an
attorney present.” Only at that poimt did they stop the
interrogation and turn off the recorder. But it was too
late.
[12] We cannot simply suppress the portion of the
interrogation that occurred after the invocation of the
right to silence and before Anderson’s purported re- |
initiation of the interrogation. Doing so would
eviscerate the mandate to “scrupulously honor[]” the
invocation of Miranda rights. We understand the
phrase “scrupulously honor” to have practical meaning.
For the “right to remain silent” to have currency, there
must be some silence. The interrogation must stop for
some period of time. See Miranda, 384 US. at 473-74;
Mosley, 423 U.S. at 103-04. Although the Supreme
Court has yet to tell us how long the break in
questioning must last, in this case there was no
cessation at all. Because the interrogation was
continuous to that point, we need not determine
whether Anderson waived his right to counsel after
viewing a videotape of his alleged accomplice nor do we
need to address his coercion claim.
[13] The prejudice from Anderson’s confession
cannot be soft pedaled, and the error was not harmless.
Brecht v. Abrahamson, 507 U.S. 619, 623 (1993). The
confession was central to the conviction: See Arizona v.
Fulminante, 499 U.S. 279, 296 (1991) (“A confession is
like no other evidence. Indeed, the defendant’s own
confession is probably the most .. . damaging evidence
that can be admitted against him.” (internal quotation
marks omitted)). Although deference must be given to
state court determinations under AEDPA, we would be
27
abdicating our responsibility to abide by Supreme Court
precedent and to police the Constitution’s boundaries
were we to permit such an egregious violation of
Miranda to go unchecked.
[14] The judgment of the district court is reversed
and the case is remanded with instructions to grant the
writ.
REVERSED AND REMANDED.
SILVERMAN, Circuit Judge, with whom RAWLINSON,
Circuit Judge, joins, concurring in the judgment:
| The Supreme Court has taken pains to remind us
that “[aJn unreasonable. application of federal law is
different from an incorrect application of federal law.”
Woodford v. Visciotti, 537 U.S. 19, 25 (2002) (emphasis
in original; quotation omitted). I write separately
because I believe the majority opinion fails to observe
this distinction,” id., in its treatment of the California
Court of Appeal’s ruling that Anderson’s statements
were “ambiguous in context.” I concur in the result
because the California Court of Appeal rendered an
unreasonable determination of the facts when it ruled
that the officer’s feigned ignorance of the Fifth
Amendment was a “legitimate clarifying question.”
The first question we face is whether the state court
acted contrary to or unreasonably applied Supreme
Court law in holding that the police were entitled to
clarify the statements Anderson made two hours into
the interview. See 28 U.S.C. § 2254(d)(1). If Anderson
28
had said, “I plead the Fifth” immediately after having
been read his rights, there would be no room for debate.
The right to remain silent clearly would have been
invoked. Here, however, after having been read his
rights, Anderson answered questions for some two hours
before making the statements now in issue. He
indicated that he “don’t even wanna talk about this no
more,” and in the next breath said, “We can talk about
it later or whatever.” (Anderson says he does not argue
that these statements were an unequivocal invocation of
the right to remain silent.) He then proceeded to
answer more questions. The conversation eventually
turned to Anderson’s drug use. At that point, he said he
was “through with this” and wanted to be “taken in
custody,” even though he was already in custody. Then,
when asked about his dope pipes, he said, “I plead the
[F Jifth.”
_ What did Anderson mean by asking to be “taken in
custody,” in light of the fact that he was already in
custody? What did he mean when he said he would
“talk about it later or whatever?” Did Anderson’s
“pleading the Fifth,” coming as it did after two hours of
talking mean that he wanted to terminate the interview
in its entirety, or was he referring to the immediate
question?
The California Court of Appeal ruled that
Anderson’s statements “were ambiguous in context”
and that the officers thus were justified in seeking
clarification. This conclusion was not “contrary to”
Supreme Court law, because the Supreme Court has
held that officers have no obligation to stop questioning
a suspect who has made an ambiguous or equivocal
invocation of Miranda rights. Davis v. United States,
29
512 US. 452, 461-62 (1994). Indeed, the Supreme Court
has specifically stated that when a suspect makes an
ambiguous statement “it will often be good police
practice” for interviewing officers to'ask “clarifying
questions” about the suspect’s meaning. Id. at 461.
Nor did the state court make an “unreasonable
application” of this precedent in concluding that the
officers were entitled to seek clarification from
Anderson. The question before us is not whether we
agree with the state court’s assessment of the ambiguity
of Anderson’s statements, or even whether it is right or
wrong, but only whether the court’s decision on that
point was unreasonable. In my view, it was not
unreasonable.
It’s a different story when it comes to assessing the
legitimacy of the “clarifying question” that the officer
asked. Instead of asking Anderson what he intended to
convey, the officer responded to Anderson’s “pleading
the Fifth” by saying, “Plead the fifth. What’s that?” As
to this, the California Court of Appeal ruled as follows:
By asking defendant what he meant by pleading the
fifth, the officer asked a legitimate clarifying question.”
By any measure, this is an unreasonable determination
of the facts. The problem with the California Court of
Appeal’s ruling is that, in point of fact, the officer did
not ask Anderson “what he meant.” Rather, he feigned
ignorance of what the Fifth Amendment is. One of the
stated reasons for Miranda’s requirement that officers
inform suspects of their rights is to “show the individual
that his interrogators are prepared to recognize his
privilege should he choose to exercise it.” Miranda v.
Arizona, 384 U.S. 436, 468 (1966). Instead of asking a
question aimed at clarifying Anderson’s meanings, the
30
officer pretended not to know about the very rights he
informed Anderson of at the outset.
The California Court of Appeal’s ruling that the
officer asked a legitimate clarifying question is an
unreasonable determination of the facts, and resulted in
a decision that is contrary to Miranda. Having failed to
clarify whether Anderson was exercising his right to
terminate questioning, the officers could not lawfully
continue the interview. Under Miranda, anything
Anderson said after that point should have been
suppressed. 384 US. at 479. It is for this reason that I
would reverse the district court’s denial of the writ.
BEA, Circuit Judge, concurring in part, dissenting in
part:
I concur in the majority’s holding that Anderson
unambiguously invoked his privilege against self-
incrimination under the Fifth Amendment to the United
States Constitution.
Anderson repeatedly invoked his right to remain
silent—“I don’t even want to talk about this no more”;
“I’m through with this” and “I plead the fifth”—yet the
police did net honor Anderson’s right to remain silent
until he finally requested an attorney. Only at that
point did the police do what they should have done in
the first—cease the interrogation.” Given that Anderson
1. Specifically. the conversation went as follows:
Defendant Jerome Anderson: I’d like to have an attorney
present.
3]
requested that the interrogation cease three times in
rapid succession, no reasonable officer could have
understood anything other than that Anderson wanted
the interrogation to stop. Further, I agree with Judge
Silverman that Officer O’Connor’s response, “Plead the
Fifth, what’s that?” was not a genuine attempt to clarify
whether Anderson wanted to invoke his right to remain
silent.
Where I part company with the majority’s analysis
is section V, where the majority concludes:
We cannot simply suppress the portion of the
interrogation that occurred after the invocation of
the right to silence and before Anderson’s
_ purported re-initiation of the interrogation. Doing
so would eviscerate the mandate to “scrupulously
honor[]” the invocation of Miranda rights. We
understand the phrase “scrupulously honor” to
have practical meaning. For the “right to remain
silent” to have currency, there must be some
silence. The interrogation must stop for some
period of time. See Miranda, 384 U.S. at 473-74;
Mosley, 423 U.S. at 103-04. Although the Supreme
Lt. Harry Bishop: Okey [src]
Detective Ron Clemens: OK fine.
Anderson: Sorry, man.
Bishop: No, don’t apologize.
Detective Tom O’Connor: okay, 7-12-97, about
22:45, ten forty-five, uh,
p.m. on Saturday. This is
it.
The police then turned the tape recorder off and stopped the
interrogation.
32
Court has yet to tell us how long the break in
questioning must last, in this case there was no
cessation at all. Because the interrogation was
continuous to that point, we need not determine
whether Anderson waived his right to counsel after °
viewing a videotape of his alleged accomplice nor do
we need to address his coercion claim.
Majority Op. at 1397-98.
The reason I disagree is that the record shows the
police did stop the interrogation after Anderson
requested an attorney, and before Anderson himself re-
initiated the conversation, as explained below. All this
occurred before Anderson confessed to the murder.
Thus, I conclude it was not error at all to admit his
confession at trial, and the California Court of Appeal’s
denial of his petition for writ of habeas corpus was not
contrary to, nor an unreasonable application of, clearly
established federal law. 28 U.S.C. § 2254(d)(1).
Approximately two hours and fifteen minutes into
the interview, after Anderson was shown the videotape
of his co-defendant Abe Santos saying Anderscn was the
one who shot Robert Clark, Anderson said, “I’d like to
have an attorney present.” The interrogating officers
then did what they should have done back when
Anderson first said, “I don’t even wanna talk about this
no more”: they stepped the interrogation and turned
the tape recorder off. Anderson had not confessed to the
murder of Clark at this point.
But then Anderson changed his mind and re-
initiated the conversation himself. The police advised
Anderson four separate times that they could not speak
33
with him because he had invoked his right to counsel,
and five separate times Anderson insisted he wanted to
talk to Lt. Harry Bishop saying in relevant part:
Anderson: Oh, man, I want to talk to you. I need,
I need to talk to you Harry. ... Okay, I-I was just
jokin’. I don’t wanna talk—Or I want to talk to
Harry, the bishop. You know the thing about the
attorney, is... is wrong or whatever, I don’t need
an attorney. Is that fair to say so [you] guys don’t
get busted outta your jobs? ... I don’t want an
attorney, I’ve changed my mind.
The officers were careful to ask clarifying questions
to discern whether Anderson was making a knowing,
intelligent and voluntary waiver of his rights to counsel
and to remain silent:
Officer Brad
McDonald: Okay. Has anybody in this room
promised you anything?
Anderson: No, sir.
McDonald: Has anybody in this room
threatened you for anything at all?
Anderson: No, sir.
McDonald: Do you feel intimidated by anybody
in this room?
Anderson: No, sir.
McDonald: Do you feel that-Has anybody in
Anderson:
McDonald:
Anderson:
McDonald:
Anderson:
McDonald:
Anderson:
McDonald:
Anderson:
McDonald:
Anderson:
McDonald:
this room, told you that if you
didn’t talk with us, or you did talk
to us, that something’ good was
gonna happen?
No, sir.
Okay, so you’ve made the decision,
that you want to talk to us and you
do not want an attorney, is that
correct?
[Pause] Yes, sir.
That’s absolutely correct, now you
kinda hesitated a little bit...
Well...
You don’t want an attorney...
Yes, sir.
.. right herein this room .. .
Yes, sir.
.. right now, is that correct?
Yes, sir.
3
Okay. An’ my name is Brad
McDonald an’ these guys have
probably told ya’ I’m the boss,
right?
35
Anderson: Uh, no, sir, it’s not
McDonald: Okay, but I am.
Anderson: Okay.
McDonald: Okay. Then I think we’re okay, I
think he’s unlawyered [sic]. Now
what do you want to talk to Harry
about?
Anderson: About ...I guess the murder of
Robbie Clark.
Anderson then eventually confessed to fatally
shooting Robbie Clark.
This was a clear waiver of both Anderson’s right to
counsel, and his right to remain silent. Two cases are
instructive. In Edwards v. Arizona, 451 U.S. 477, 481-
84 (1981), Edwards was convicted of robbery, burglary,
and first-degree murder after his confession was entered
into evidence. After being read his Miranda rights,
Edwards stated, “I want an attorney before making a
deal.” At that point, all questioning ceased. Id. at 479.
The next day, two different detectives came to
question Edwards in jail. When he was told they were
there, Edwards told the jail guard, “he did not want to
talk to anyone.” Jd. The guard told Edwards he was
obligated to talk to the detectives. Jd. The detectives
then advised Edwards of his Miranda rights again, and
he agreed to talk to them, but said he did not want the
discussion taped. Edwards then implicated himself in
the crime after being confronted with the statement of
36
a co-defendant who had implicated him. Jd.
The Arizona Supreme Court affirmed his conviction
and held Edwards had invoked both his right to remain
silent and his right to counsel, but had waived both
rights when he voluntarily gave his statement to the
detectives after they informed him again of his Miranda
rights. Jd. at 480.
The Supreme Court reversed and held the use of
Edwards’s confession violated his Fifth Amendment
rights as construed in Miranda. The Court held that
when an accused requests an attorney, he may not be
questioned unless an attorney has been made available
or “the accused himself initiates further communication,
exchanges, or conversation with the police.” Id. at 485.
Any waiver after an invocation of the right to remain
silent or the right to an attorney must not only be
voluntary, but must also “constitute a knowing and
intelligent relinquishment or abandonment of a known
right or privilege.” Jd. at 482. Although the police
appeared the day after Edwards had requested an
attorney, the time elapsed between interrogations was
not a factor the Court considered in determining the
admissibility of his confession. The crucial factors were
whether the second interrogation was initiated by
Edwards (it was not); and, whether such initiation was
voluntary (it was not, because the jail guard told
Edwards he was required to speak to the police).
On the other hand, the later case of Oregon uv.
Bradshaw, 462 U.S. 1039, 1045-46 (1983), clarifies how
an accused who has invoked his right to counsel can
initiate a discussion and validly waive his rights to
counsel and to remain silent. During the investigation
37
of the death of a person whose body had been found in
Bradshaw’s wrecked pickup truck, Bradshaw was
questioned at the police station. Bradshaw was advised
of his Miranda rights. He was arrested for furnishing
liquor to the victim, a minor, and again advised of his
Miranda rights. Id. at 1041-42. Bradshaw denied he
was driving the truck and asked for an attorney. Jd.
Later that same day, while being transported in
custody from the police station to a jail, Bradshaw asked
a police officer, “Well, what is going to happen to me
now?” Id. at 1042. The officer answered that Bradshaw
did not have to talk to him and Bradshaw said he
understood. They then discussed where Bradshaw was
being taken and the offense with which he would be
charged. The officer suggested that Bradshaw take a
polygraph examination, which he did, after another
reading of his Miranda rights. Id.
When the polygraph examiner told Bradshaw he did
not believe Bradshaw was telling the truth, Bradshaw
recanted his earlier story and admitted that he had been
driving the truck in question and that he had consumed
a considerable amount of alcohol and passed out at the
wheel of the truck before it left the highway. Jd.
Bradshaw was charged with first-degree manslaughter,
driving while under the influence of intoxicants, and
driving while his license was revoked. His motion to
suppress his statement was denied, and he was found
guilty after a bench trial. Jd.
The Oregon Court of Appeals reversed, holding the
inquiry Bradshaw made of the police officer while being
transferred to jail did not “initiate” a conversation with
the officer and therefore the statements growing out of
38
this conversation should have been excluded from
evidence under Edwards v. Arizona. Id. at1042-43. The
Oregon Supreme Court denied review, without writing
an opinion on the merits.
On direct appeal, the Supreme Court reversed,
holding that by asking “Well, what is going to happen to
me now?”, Bradshaw “initiated” a further conversation.
Id. at 1045. His statement evinced a willingness and a
desire for a generalized discussion about the
investigation. Id.
Because there was no violation of the Edwards
initiation rule, the next inquiry was whether, in light of
the totality of the circumstances, Bradshaw made a
knowing and intelligent waiver of his right to have
counsel present. The trial court, based on its first-hand
observation of the witnesses, found a waiver and the
Supreme Court found no reason to dispute that finding.
Id. at 1045-47.
Here, Anderson himself initiated the conversation
when, after being told by the police that they could no
longer talk to him, he said, “Oh man, I want to talk to
you. I need, I need to talk to you Harry [Lt. Bishop].”
Anderson also made a knowing and intelligent waiver of
his right to have counsel present when he said, “I don’t
want an attorney; I’ve changed my mind” and he
wanted to talk to the police officers “about the murder
of Robbie Clark.”
Itis unclear how long the interrogation was stopped
after Anderson requested an attorney, and before
Anderson asked to speak with Lt. Bishop. The record
implies it did not appear to be a long period of time.
39
Although the Supreme Court has held the interrogation
must stop for some period of time before a suspect can
waive a properly invoked Miranda right, that amount of
time has never been specified. In Bradshaw, we know
the time was not long because when he re-initiated the
conversation with the officer, Bradshaw was being
transported from the police station to the jail shortly
after he had requested an attorney. 462 U.S. at 1042.
Even though not much time had elapsed since Bradshaw
had requested an attorney, the Court had no problem
finding Bradshaw was the one who re-initiated the
conversation. There is no clearly established federal law
mandating a particular amount of time the break in the
interrogation must last. We have recently been
reminded that where there is no such clearly established
federal law, as determined by the Supreme Court of the
United States, we are not allowed to invent such law.
See Carey v. Musladin, 127 8S. Ct. 649, 653 (2006)
Hence, the relevant fact here is that Anderson re-
initiated the conversation, not the duration of the break
in the conversation.
Given that Anderson validly waived his right to
counsel and his right to remain silent before he
confessed, the admission of his confession was not error,
and the California Court of Appeal’s denial of his
petition for writ of habeas corpus was not contrary to,
nor an unreasonable application of, clearly established
federal law. 28 U.S.C. § 2254(d)(1). For this reason, I
respectfully dissent.
TALLMAN, Circuit Judge, with whom CALLAHAN,
Circuit Judge, joins, dissenting:
40
Lewis Carroll was right: “When I use a word . .. it
means just what I choose it to mean, neither more nor
less.” Lewis Carroll, Alice’s Adventures in Wonderland
163 (Donald J. Gray ed., W.W. Norton 1973) (1871). My
colleagues in the majority fixate on the words “plead the
Fifth” lifted in isolation from a portion of the
transcribed interview without giving the required level
of deference to the trial court’s findings of fact after an
evidentiary hearing, which included the entire tape
recording and the testimony of the interrogators. No
one disputes that Jerome Alvin Anderson, a known felon
on parole, admitted to killing his acquaintance and
friend, Robert Clark: Anderson admitted, “I shot
(Clari.].” Nor does anyone dispute that Anderson
answered questions for nearly two and one-half hours
before making the statement, “I plead the Fifth.”
The California courts examined Anderson’s
statement in the full context of his confession.
Following an evidentiary hearing, the Shasta County
Superior Court Judge made a factual finding that “while
the defendant articulated words that could, in the
isolation, be viewed as an invocation of his right to
remain silent, the defendant did not intend to terminate
the interview.” (Emphasis added). In affirming the trial
court’s decision to deny Anderson’s motion to suppress
his later confession because it was knowing and
voluntary, the California Court of Appeal neither
unreasonably applied clearly established Supreme Court
precedent, nor made an unreasonable determination of
facts. The state courts’ conclusion that Anderson’s
comments were ambiguous in context was not an
unreasonable application of clearly established Supreme
Court precedent. Nor was their conclusion that the
detective’s follow-up question, “Plead the Fifth. What’s
4]
that?,” was a permissible clarification question an
unreasonable determination of fact. I respectfully
dissent. .
I
We may grant habeas relief only if the California
Court of Appeal acted contrary to or unreasonably
applied clearly established Supreme Court precedent, or
made an unreasonable determination of facts. See 28
U.S.C. § 2254(d); Lockyer v. Andrade, 538 U.S. 63, 70-73
(2003). “[C]learly established Federal law under §
2254(d)(1) [(the Antiterrorism and Effective Death
Penalty Act of 1996 (‘AEDPA’))] is the governing legal
principle or principles set forth by the Supreme Court at
the time the state court render[ed] its decision.”
Lockyer, 538 U.S. at 71-72 (internal quotation marks
omitted). The Court has stated that a “state court
decision is contrary to... clearly established [Supreme
Court] precedent if the state court applies a rule that
contradicts the governing law set forth in [Supreme
_ Court] cases or if the state court confronts a set of facts
that are materially indistinguishable from a decision of
[the] Court and nevertheless arrives at a result different
from [its] precedent.” /d. at 73 (internal quotation
marks omitted).
There is an open question in Supreme Court
jurisprudence on issues involving the invocation of a
suspect’s Fifth Amendment right to remain silent.
Clearly established Supreme Court precedent in the
arena of the right to remain silent is Miranda v.
‘Arizona, 384 U.S. 436 (1966), and Michigan v. Mosley,
423 U.S. 96, 101 (1975). In Miranda, the Supreme
Court held that “[{iJf [an] individual indicates in any
42
manner, at any time prior to or during questioning, that
he wishes to remain silent, the interrogation must
cease.” 385 U.S. at 473-74. Once a defendant has
invoked his. right to remain silent, that right must be:
“scrupulously honored.” Mosley, 423 U.S. at 103-04.
While the Supreme Court has addressed the substance
of the right to remain silent in Miranda and Mosley, at
no time has the Court addressed how that right is to be
invoked.
In comparison, under clearly established Supreme
Court precedent, a suspect’s statements to invoke his
. Fifth Amendment right to counsel under Miranda must
be clear and unequivocal. See Davis v. Alaska, 512 U.S.
452, 459 (1994). The determination of whether the
suspect clearly invoked his right to counsel requires an
objective inquiry. Jd. at 458-59. The suspect must, “at
a minimum, [give] some statement that can reasonably
be construed to be an expression of a desire for the
assistance of an attorney.” Jd. at 459 (internal
quotation marks omitted). A statement is ambiguous
when a “reasonable officer in light of the circumstances
would have understood only that the suspect might be
invoking the right to counsel.” Jd. (first emphasis
added).
The United States Supreme Court has never
declared its right to counsel principles applicable to
invoking the right to silence, and under AEDPA that
precedent was not “clearly established” when the
California Court of Appeal rendered its decision. See
Bui v. Dipaolo, 170 F.3d 232, 239 (1st, Cir. 1999)
(recognizing that Davis was concerned only with the
right to counsel, and not the right to remain silent).
Indeed, in prior cases, we have declined to determine
43
whether the rule in-Davis when invoking the right to
counsel applied with equal force to the right to remain
silent. See Arnold v. Runnels, 421 F.3d 859, 866 n.8
(9th Cir. 2005); United States v. Soliz, 129 F.3d 499, 504
n.3 (1997), overruled on other grounds by United States
v. Johnson, 256 F.3d 895 (9th Cir. 2001) (en banc) (per
curiam); Evans v. Demosthenes, 98 F.3d 1174, 1176 (9th
Cir. 1996). Other circuits have made that leap. See, e.g.,
Arnold, 421 F.3d at 870 & n.1 (Callahan, J., dissenting)
(collecting cases). |
In circumstances where there is no “clear-cut
Supreme Court rule that certain magic words
automatically bring all questioning to a halt-regardless
of the circumstances surrounding the interrogation,”
Anderson v. Terhune, 467 F.3d 1208, 1213 (9th Cir.
2006), reh’g en banc granted, 486 F.3d 1155 (2007), we
simply canno’ say that the California Court of Appeal
unreasonably applied clearly established Supreme Court
precedent. See Carey v. Musladin, 127 S. Ct. 649, 654
(2006) (concluding that the state court’s determination
was not an unreasonable application of Supreme Court
precedent because there was no Supreme Court
precedent addressing that area of law). Invoking the
lyrics of a popular Country-Western song in lieu of
Supreme Court authority is not good enough under
AEDPA.
Nor can we grant habeas relief because, when
lacking clearly established Supreme Court precedent,
- the California Court of Appeal looked to Supreme Court
law in another context for guidance. In holding that
Anderson’s statement was ambiguous, and that the
detective’s follow-up question could reasonably be
interpreted as a “legitimate clarifying question,” the
44
California Court of Appeal applied the Supreme Court’s
precedent in Davis. It looked at the totality of the
circumstances to determine that a reasonable officer
could have understood only that Anderson may have
intended to invoke his Fifth Amendment right to remain
silent. See Davis, 512 U.S. at 459. Given the lack ofa
holding from the Supreme Court addressing invocation
of the Fifth Amendment right to remain silent, it cannot
be said that the California Court of Appeal applied a
standard that was “contrary to” clearly established
Supreme Court precedent. Cf Musladin, 1275S. Ct. at
654.
II
Having failed to heed AEDPA and to acknowledge
the lack of clearly established Supreme Court authority
on invoking one’s Fifth Amendment right to silence, the
majority proceeds to fault the California courts for
considering Anderson’s statement in the context of the
interview. Maj. Op. at 1389. Despite the majority’s
misconceptions, we simply cannot pluck the words “I
plead the Fifth” out of the transcript and declare we
have an unambiguous statement. See Maj. Op. at 1389
(“Using ‘context’ to transform an unambiguous
invocation into open-ended ambiguity defies both
common sense and established Supreme Court law.”).
It defies common sense to determine what an objectively
reasonable officer would have understood without
looking at the totality of the interview. See Davis, 512
US. at 459.
As Judge Silverman aptly displays, see Silverman
Concurrence at 1399, when considered in context, the
state courts reasonably concluded that there is
45
ambiguity in Anderson’s statement.’ While the |
majority may disagree with the conclusion, that is
simply insufficient to declare the California Court of
Appeal’s holding “unreasonable.” We have been told
before that objectively unreasonable means something
more than we think the state courts were wrong. “[A]n
unreasonable application of federal law is different from
an incorrect application.” Williams v. Taylor, 529 U.S.
362, 410 (2000); see also Schriro v. Landrigan, 127 S.
Ct. 1933, 1939 (2007) (stating that under AEDPA the
petitioner must meet the “substantially higher
threshold” of unre2sonableness); Brown v. Payton, 544
U.S. 133, 143 (2005) (denying AEDPA relief because
“[e]ven on the assumption that [the state court’s]
conclusion was incorrect, it was not unreasonable”);
Mitchell v. Esparza, 540 U.S. 12, 18 (2003) (per curiam)
(“We may not grant respondent’s habeas petition .. . if
the state court simply erred in concluding that the
State’s errors were harmless. .. .”); Lockyer, 538 U.S. at
75 (reversing us because, by defining “unreasonable
application” as “clear error,” we “fail[ed] to give proper
deference to state courts by conflating error (even clear
error) with unreasonableness”); Woodford v. Visciotti,
537 U.S. 19, 25 (2002) (per curiam) (reversing us
because we failed to observe the distinction between an
incorrect application and an unreasonable application).
Therefore, even if we could grant habeas relief in
1. Where I part company with my brother Silverman is in
his conclusion that the sheriff's detective was being sarcastic and
already understood what Anderson meant by “pleading the Fifth”
when he asked for clarification. See infra, § III. In the face of the
trial judge’s factual determination that an ambiguity existed
triggering the detective’s justification for seeking clarification,
AEDPA dictates that we defer to the trial court.
46
the absence of clearly established Supreme Court
precedent, I would deny the petition. The California
courts’ application of Davis and its finding of ambiguity
was reasonable.
iil
The only other way to grant Anderson habeas relief
requires the majority to overrule the California Court of
Appeal’s factual finding. My colleagues have to find that
the state court conclusion was “an unreasonable
determination of the facts in light of the evidence
presented in the State court proceeding.” 28 U.S.C. §
2254(d)(2). But in considering Anderson’s motion to
suppress, the Shasta County trial court considered live
testimony from the interrogating officers and heard the
audiotapes of the confession. The California Court of
Appeal then adopted the trial court’s factual finding
verbatim:
Given the totality of the circumstances in this
matter, the court concludes that while the
defendant articulated words that could, in...
isolation, be viewed as an invocation of his right to
remain silent, the defendant did not intend to
terminate the interview. The interrogating officer
did not continue or reinitiate the interview by
posing the question. “Plead the Fifth. What’s
that?” The questions can reasonably be
characterized as a request for clarification or
confirmation that the defendant wished to assert
his right to remain silent, and nothing more. What
followed is important to a determination of the
question. Specifically, the defendant launched off
on a discourse and, ultimately, engaged in a debate
47
without making any reference to an invocation of
the right to remain silent. It was the defendant, not
the interrogators, who continued the discussion.
Accordingly, while words of invocation were spoken
by the defendant, the court concludes that, in any
case, he effectively waived the right to remain silent
by what followed.
Moreover, the California Court of Appeal took note of an
interrogating officer’s testimony during the hearing on
the motion to suppress. “[T]he interrogating officer
testified he believed that in saying, “I plead the Fifth[,]”
[Anderson] was simply indicating an unwillingness to
discuss the details of his drug use, and not a desire to
terminate the interrogation.”
This is not a situation where a suspect clearly states
his or her intent (such as when a witness invokes his
Fifth Amendment right to refuse to answer a specific
question at trial). Cf. Arnold, 421 F.3d at 861-62
(finding that Arnold unequivocally invoked his right to
remain silent when he told the officers that he did not
want to talk on tape). Instead, in response to a direct
question about his drug use, Anderson, after willingly
answering questions about the murder for two and one-
half hours, responded “I plead the Fifth.” The officers
did not respond by asking Anderson more questions
about his drug use. Rather, the officer asked, “Plead the
Fifth. What’s that?” Having considered all of the
evidence, the Shasta County Superior Court found as a
matter of fact that Anderson did not intend to end the
interview and that the officers asked a legitimate
clarifying question. Anderson does not challenge the
state court’s fact-finding process, and he has failed to
rebut the trial court’s factual finding by clear and
48
convincing evidence, as he must under AEDPA. Taylor
v. Maddox, 366 F.3d 992, 1000 (9th Cir. 2004).
Admittedly, the detective could have phrased his
clarifying question differently, and perhaps he should
have.uttered it with less sarcasm, but a poorly-phrased
question without more is not grounds to grant federal
habeas corpus relief.
AEDPA mandates comity and deference to
California’s decision that Anderson’s confession was
voluntary. Rejecting it, the majority decrees that a
murderer “is to go free because the constable has
blundered.” See People v. Defore, 242 N.Y. 13, 21 (1926)
(Cardozo, J.).
I respectfully dissent.
APPENDIX B
FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
JEROME ALVIN ANDERSON, No. 04-17237
Petitioner-Appellant,
D.C. No.
CV-00-002494-
WBS
C.A. TERHUNE, Warden, OPINION
Respondent-Appellee.
V.
Appeal from the United States District Court
for the Eastern District of California
William B. Shubb, Chief Judge, Presiding
Submitted December 5, 2005*
San Francisco, California
Filed November 8, 2006
Before: Alex Kozinski and M. Margaret McKeown,
Circuit Judges, and Michael R. Hogan** District
Judge.
Opinion by Judge Hogan;
Dissent by Judge MeKeon
—--
* This panel unanimously finds this case suitable for decision
without oral argument. See Fed. R. App. P 34(a)(2).
** The Honorable Michael R. Hogan, United States District Judge
for the District of Oregon, sitting by designation.
SUMMARY
Criminal Law and Procedure/Habeas Corpus
The court of appeals affirmed a judgment of the
district court. The court held that a state court’s
conclusions that a defendant’s statements that “I don’t
want to talk about this no more,” and “I plead the fifth,”
were ambiguous; and that the interrogating officer’s
retort—“Plead the fifth. What’s that?”-sought
clarification, were not unreasonable under the
Antiterrorism and Effective Death Penalty Act
(AEDPA).
Appellant Jerome Anderson, who was convicted of
special circumstance murder in California state court
and unsuccessful in his state court appeals, petitioned
for a writ of habeas corpus in federal district court on
the grounds that (1) he was denied his constitutional
right to remain silent; and (2) he was denied due process
by the introduction of his involuntary confession into
evidence, and by the exclusion of evidence of coercion in
the interrogation process. Anderson claimed that the
interrogating officers coerced his confession because
they withheld basic needs, such as cigarettes and warm
clothing, until he agreed to talk. The state court
concluded that Anderson’s statements to police while in
custody that “I don’t want to talk about this no more,”
and “I plead the fifth,” were ambiguous; and that the
interrogating officer’s retort—“Plead the fifth. What’s
that?”—sought clarification. Once Anderson stated “I'd
like to have an attorney present,” the interrogating
officers stopped the interrogation and turned the tape
recorder off. However, Anderson continued the
conversation and asked what was going to happen to
him. In response to the officers’ statements that they
could not talk to him, Anderson clarified that he was
just joking and stated “I don’t want an attorney.” The
district court denied Anderson’s petition.
Anderson appealed.
[1] If a suspect indicates in any manner during
questioning that he wishes to remain silent,
interrogation must cease. Any statement taken after
invocation of the privilege would constitute the product
‘ of compulsion. However, when a suspect makes an
ambiguous or equivocal statement it will often be good
police practice for the interviewing officers to clarify
whether or not he actually wants to invoke the privilege.
[2] Anderson arguably invoked his right to remain
silent on two occasions when he stated, “I don’t want to
talk about this no more,” and, “I plead the fifth.”
Anderson did not express a desire to remain silent in
response to the clarifying question. [3] To reverse
under AEDPA, the court of appeals would have to find
that the state court’s factual findings were
unreasonable, and Anderson rebutted them with clear
and convincing evidence. Or, in the alternative, the
court of appeals would have to hold that this
determination was a question of law, and the state
court’s decision unreasonably applied clearly established
federal law. Namely, there would have to be some clear-
cut Supreme Court rule that certain magic words
automatically bring all questioning to a halt—regardless
of the circumstances surrounding the interrogation.
Here, neither was the case. [4] The state court found,
for better or for worse, that Anderson’s attempted
invocation of his right to remain silent was ambiguous
and that the officer’s following question legitimately
sought clarification. Absent a bright-line rule from the
“ 9 + ‘ ., ond, —
a a ree fa aa _
Ee ee I I ee A SE OC Ae Ea
Supreme Court, the state-court conclusion was a
reasonable determination of the facts.
[5] Once Anderson stated “I’d like to have an
attorney present,” the interrogating officers stopped the
interrogation and turned the tape recorder off.
However, Anderson unilaterally continued the
conversation and asked what was going to happen to
him. Accordingly, the interrogating officers were not
prohibited from further questioning. In response to the
officers’ statements that they could not talk to him,
Anderson clarified that he was just joking and stated “TI
don’t want an attorney.” Therefore, Anderson validly
waived his right to counsel.
_ {6] The record did not support a finding of .an
involuntary confession. [7] Anderson was not
prevented from presenting evidence of the physical and
psychological environment that yielded the confession.
Exclusion of purported expert testimony of Anderson’s
self-image and other aspects of the voluntariness of the
confession, if error, was harmless. The judgment of the
district court had to be affirmed.
Judge McKeown dissented, writing that it was rare
to see such a pristine invocation of the Fifth
Amendment and extraordinary to see such flagrant
disregard of the right to remain silent; under even the
narrowest construction of AEDPA, the state court erred
in failing to recognize this constitutional violation.
COUNSEL
Charles M. Bonneau, Sacramento, California, for the
petitioner-appellant.
Bill Lockyer, Attorney General; Robert R. Anderson,
Chief Assistant Attorney General; Mary Jo Graves,
Senior Assistant Attorney General; Stephen G.
Herndon, Supervising Deputy Attorney General; Brian
R. Means, Supervising Deputy Attorney General; Craig
S. Meyers, Deputy Attorney General; Sacramento,
California, for the respondent-appellee.
OPINION
HOGAN, District Judge:
Petitioner, Jerome Alvin Anderson, appeals the
district court’s order denying his petition for writ of
habeas corpus pursuant to 28 U.S.C. § 2254. Anderson
chailenges his conviction of special circumstance murder
on the grounds that (1) he was denied his constitutional
right to remain silent; and (2) he was denied due process
by the introduction of his involuntary confession into
evidence, and by the exclusion of the evidence of
coercion in the interrogation process.
Facts
Anderson and the victim, Robert Clark, were
friends. On the morning of July 9, 1997, a mutual
acquaintance, Patricia Kuykendall, discovered that her
car had been stolen. Anderson visited Kuykendall’s
apartment that day and informed Kuykendall that Clark
had a habit of borrowing cars, duplicating keys and
stealing them later.
Anderson left to bring Clark back to Kuykendall’s
apartment. Kuykendall and petitioner confronted Clark
about the car. Clark denied involvement in the theft.
As Kuykendall called the police, Clark left. About ten
minutes later, Anderson and Kuykendall’s roommate,
Abe Santos, followed after Clark.
About 12:30 or 1:00 p.m. on that afternoon, an
employee at Carl’s Jr. waited on three people in a white
Ford Mustang at the drive-through window. The
employee identified Anderson as the driver. At about
1:05 p.m. witnesses noticed a white Mustang with black
trim and tinted windows on East Stillwater Road. One
witness specifically saw Anderson standing behind the
car and two other men standing by the car.
Clark’s body was discovered by the side of East
Stillwater Road at about 2:30 p.m. He had been shot in
the head four times. A methamphetamine pipe lay next
to him, and a cigarette lighter was in his hand. Two
pieces of hamburger and a fresh cigarette butt were also
near the body, as well as spent .22 shell casings.
Kuykendall’s key was discovered in Clark’s pocket.
A search of defendant’s car, a white Ford Mustang
with black trim and tinted windows, revealed that the
tire tracks found near the body were similar to the tire
tracks it made. The search also revealed two live .22 rim
fire casings under the seats similar to the spent casing
found near Clark’s body. An analysis of the clothes
Anderson wore that day revealed that three small blood
stains on his shorts were consistent with Clark’s DNA
and inconsistent with Anderson’s or Santos’ DNA.
Authorities took defendant into custody for a parole
violation on July 12, 1997, at approximately 8:00 p.m.
Officers interviewed Anderson for approximately three
and ahalf hours. The interrogation included the
following discussion with Detective O’Connor:
O’Connor: You act like you’re cryin’ like a baby,
an’, you can’t cry for someone that
was no good... an’ you killed him for
a good reason.
Anderson: No, way. I — You know what, I don’t
even wanna talk about this no more.
We can talk about it later or
whatever. I don’t want to talk about
this no more. That’s wrong. That’s
wrong.
O’Connor: Right now, you show your remorse.
Anderson: Ihavenothin’ to worry about, nothin’
to hide. That’s why I show no
remorse. Nothin’ to worry about,
nothin’ to hide. He was my friend,
an’ there’s no way I would do it. No
way [ would do It.
O’Connor: Were you high that day?
Anderson: No, sir. I —- probably was later on.
Yes.
O’Connor:
Anderson:
O’Connor:
Anderson:
O’Connor:
Anderson:
O’Connor:
Anderson:
O’Connor:
Anderson:
O'Connor:
Anderson:
O’Connor:
Anderson:
Did you have any dope with you that
... that day?
No, sir.
No, dope at all? What do you smoke
with?
I smoke with my . . . my fingers.
When you smoke your dope what do
you do with that? How do you smoke
that?
You smoke it with pipes and stuff like
that. :
Okay. What kind of pipes?
Lines.
What kind of pipes?
N’ah ... I would —I-
Well, what kind of pipes?
Uh! I’m through with this. I’m
through. I wanna be taken in
custody, with my parole...
Well, you already are. I wanna know
what kinda pipes you have?
I plead the fifth.
O’Connor: Plead the fifth. What’s that?
Anderson: No, you guysare wrong. You guys are
wrong. You guys have — I’ve tried to
tell you everything I know. As far as
I know, you guys are lying, uh,
making things up, extenuating and
that’s not right. It’s not right. [Door
opens/Closes]
O’Connor: We’re not makin’ anything up.
Anderson: Sir, sure you are.
O’Connor: What are we makin’ up?
Anderson: You’re tellin’ me that I didn’t have
tears in my eyes.
O’Connor: Yeah.
Anderson: You’re tellin’ me, okay, that, uh, uh,
Abe said I kilt (sic) him. That’s a lie.
Officers then showed Anderson a videotaped
interview in which Abe Santos confessed to watching
defendant shoot Clark. Defendant eventually confessed.
Right to Remain Silent
Anderson asserts that he was denied his
constitutional right to remain silent during this
exchange. The state court concluded that while the
defendant articulated words that could, in isolation, be
viewed as an invocation of his right to remain silent,
10
given the totality of the circumstances, the defendant
did not intend to terminate the interview. The state
appellate court quoted the reasoning provided by the
trial court:
The interrogating officer did not continue or
reinitiate the interview by posing the question:
“plead the fifth. What’s that?” The questions can
reasonably be characterized as a request for
clarification or confirmation that the defendant
wished to assert his right to remain silent, and
nothing more. What followed is important to a
determination of the question. Specifically, the
defendant launched off on a discourse and,
ultimately engaged in a debate without making any
reference to an invocation of the right to remain
silent. [t was the defendant, not the interrogators,
who continued the discussion.
The appellate court further reasoned that “the
interrogating officer testified he believed that in saying,
‘T plead the fifth’ defendant was simply indicating an
unwillingness to discuss the details of his drug use, and
not a desire to terminate the interregation.”
[1] The state court thus determined that the
detective’s further questioning was not inappropriate.
In the present case, the defendant’s comments were
ambiguous in context because they could have been
interpreted as not wanting officers to pursue the
particulars of his drug use as opposed to not
wanting to continue the questioning at all. By
asking defendant what he meant by pleading the
fifth, the officer asked a legitimate clarifying
question.
If a suspect indicates in any manner during
questioning that he wishes to remain silent,
interrogation must cease. Miranda v. Arizona, 384 US.
436, 473-74, (1966). Any statement taken after
invocation of the privilege would constitute the product
of compulsion. Id. at 474. However, “when a suspect
makes an ambiguous or equivocal statement it will often
be good police practice for the interviewing officers to
clarify whether or not he actually wants [to invoke the
privilege].” Davis v. United States, 512 U.S. 452, 461
(1994) (holding that the statement, “Maybe I should
talk to a lawyer,” is not necessarily a request for
counsel). Clarifying questions “minimize the change of
a confession being suppressed due to subsequent judicial
second-guessing as to the meaning of the suspect's
statement.” /d. “If the suspect’s statement is not
unambiguous or unequivocal .. . the officers have no
obligation to stop questioning.” Id. 461-62.
[2] Here, Anderson arguably invoked his right to
remain silent on two occasions. First, he stated, “I don’t
even wanna talk about this no more. We can talk about
it later or whatever. I don’t want to talk about this no
more,” and then he stated, “I plead the fifth.” Anderson
did not express a desire to remain silent in response to
the clarifying question. As noted above, the state court
concluded that Anderson’s comments were ambiguous
and that the interrogating officer’s question sought
clarification. These are the state-court determinations
we must review on appeal.
1. Anderson does net argue that this was an unequivocal
invocation of his right to remain silent.
12
If this case were not before us on 28 U.S.C. § 2254
habeas review, we might be writing a very different
opinion. There’s definitely more than one way to
interpret Detective O’Connor’s interrogation. And, the
state court’s interpretation might not be the most
plausible one. But in federal habeas proceedings under
AEDPA.? great deference is given to state-court factual
and legal determinations.
To reverse under AEDPA, we would have to find
the state-court conclusion to be “an unreasonable
determination of the facts in light of the evidence
presented in the State court proceeding.” 28 U.S.C. §
2254(d)(2); see also Rice v. Collins, 126 S. Ct. 969, 974-
76 (2006) (holding that it was not unreasonable for a
state court to determine that a prosecutor’s
explanations were race-neutral for Batson purposes).
Further, state-court factual findings must be “presumed
to be correct,” and the habeas petitioner “must rebut]
the presumption of correctness by clear and convincing
evidence.” 28 U.S.C. § 2254(e)(1); see also Miiler-El v.
Drekte, 125 S. Ct. 2317, 2325 (2005).
AEDPA similarly requires us to give considerable
deference to a state appellate court’s legal judgments.
In reviewing questions of law, we may not reverse under
AEDPA unless the state court’s decision “was contrary
2. Antiterrorism and Effective Death Penalty Act of 1996,
Pub. L. No. 104-132, § 104, 110 Stat. 1214, 1218 (1996) (amending
28 U.S.C. § 2254.) AE DPA “modified a federal habeas court’s role
in reviewing state prisoner applications in order to prevent federal
habeas ‘retrials’ and to ensure that state-court convictions are
given effect to the extent possible under law.” Bell v. Cone, 535
U.S. 685, 693 (2002) (quoting Williams v. Taylor, 529 U.S. 362,
403-04 (2000)).
13
to, or involved an unreasonable application of, clearly
established Federal law, as determined by the Supreme
Court of the United States.” 28 U.S.C. § 2254(d)(1).
This inquiry is “straightforward.” Lockyer v. Andrade,
538 U.S. 63, 74-75 (2003). We look to the Supreme
Court’s “holdings, as opposed to dicta,” to determine
whether clearly established federal law exists. Williams
v. Taylor, 529 U.S. 362, 412 (2000). And, if clearly
established federal law applies, it’s not enough for the
state court to incorrectly apply the law: “[A]Jn
unreasonable application of federal law is.different from
an incorrect application.” Id. at 409; see also id. at 411
(“[A] federal habeas court may not issue a writ simply
because that court concludes in its independent
judgment that the relevant state-court decision applied
clearly established federal law erroneously or
incorrectly. Rather, that application must also be
unreasonable.”).
[3] We’re thus left with only two ways to reverse:
First, we would have to find that the state court’s
factual findings were unreasonable, and petitioner
rebutted them with clear and convincing evidence. Or,
in the alternative, we would have to hold that this
determination was a question of law, and the state
court’s decision unreasonably applied clearly established
federal law. Namely, there would have to be some clear-
cut Supreme Court rule that certain magic words
automatically bring all questioning to a halt—-regardless
of the circumstances surrounding the interrogation.
Here, neither is the case.
[4] The state court found, for better or for worse,
that Anderson’s attempted invocation of his right to
remain silent was ambiguous and that the officer’s
14
following question legitimately sought clarification.
Absent a bright-line rule from the Supreme Court, the
state-court conclusion is a reasonable determination of
the facts.
Right to Counsel
[5] Anderson also contends that he validly invoked
his right to counsel and did not subsequently waive this
right prior to the confession. Once Anderson stated “I’d
like to have an attorney present,” the interrogating
officers stopped the interrogation and turned the tape
recorder off. However, Anderson unilaterally continued
the conversation and asked what was going to happen to
him. Accordingly, the interrogating officers were not
prohibited from further questioning. See Oregon v.
Bradshaw, 462 U.S. 1039, 1045-46 (1983) (holding that
the question, “Well, what is goirig to happen to me?” is
enough to “initiate” conversation after requesting a
lawyer). In response to the officers’ statements that
they could not talk to him, Anderson clarified that he
was just jokin[g|” and stated “I don’t want an attorney.
I’ve changed my mind.” Therefore, Anderson validly
waived his right to counsel. See Jd. at 1046.
Coercion Claims
{6} Anderson next argues that the interrogating
officers coerced his confession because they withheld
basic needs, such as cigarettes and warm clothing, until
he agreed to talk, exploited his mental condition brought
on by chronic drug use, threatened him with the death
penalty and ignored his requests to remain siient. The
record does not support a finding of an involuntary
confession. See United States v. Coleman, 208 F.3d 786,
15
791 (9th Cir. 2000) (heroin withdrawal and physical
discomfort not enough to establish involuntariness of
confession); United States v. Guerrero, 847 F.2d 1363,
1366 (9th Cir. 1988) (promise to recommend leniency
not enough).
(7] Finally, Anderson argues that the trial court
improperly excluded evidence of coercion. The state
court reasonably concluded that the criminal trial court
did not violate the holding of Crane v. Kentucky, 476
U.S. 683, 688-91 (1986). Petitioner was not prevented
from presenting evidence of the physical and
psychological environment that yielded the confession.
Exclusion of purported expert testimony of petitioner’s
self-image and other aspects of the voluntariness of the
confession, if error, was harmless.
* * *
The standard of review is critical here. Under
AEDPA, we must give deference to state-court factual
and legal determinations, which in this case are
reasonable in light of the evidence presented in the
state-court proceedings and the lack of clearly
established rederal law to the contrary. The district
court’s judgment denying Anderson’s petition for writ of
habeas corpus is therefore AFFIRMED.
McKEOWN, Circuit Judge, dissenting:
It is likely that few Americans can profess fluency
in the Bill of Rights, but the Fifth Amendment is surely
16
an exception.” From television shows like “Law &
Order” to movies such as “Guys and Dolls,” we are
steeped in the culture that knows a person in custody
has “the right to remain silent.” Miranda is practically
a household word. And surely, when a criminal]
defendant says, “I plead the Fifth,” it doesn’t take a
trained linguist, a Ph.D., or a lawyer to know what he
meant.
Here, Anderson said, “J don’t even wanna talk
about this no more,” “Uh! I’m through with this,” and
“T plead the Fifth.” The officer did not stop questioning
but instead responded, “Plead the Fifth. What’s that?”,
continued the questioning, and ultimately obtained a
confession. It is rare to see such a pristine invocation of
the Fifth Amendment and extraordinary to see such
flagrant disregard of the right to remain silent. Under
even the narrowest construction of AEDPA,” the state
court erred in failing to recognize this constitutional
1. As early as 1955, the Supreme Court recognized that “in
popular parlance and even legal literature, the term ‘Fifth
Amendment’ in the context of our time is commonly regarded as
being synonymous with the privilege against self-incrimination.”
Quinn v. United States, 349 U.S. 155, 163 (1955); accord In re
Johnny V., 149 Cal. Rptr. 180, 184, 188 (Cal. Ct. App. 1978)
(holding that the statement “I'll take the fifth” was an assertion of
the Fifth Amendment privilege.)
2. Under the Antiterrorism and Effective Death Penalty
Act of 1996 (“AEDPA”), 28 U.S.C. § 2254(d), a writ of habeas
corpus may not be granted unless the state court’s decision (1)
resulted in a decision that was contrary to, or involved an
unreasonable application of, clearly established federal law, as
determined by the Supreme Court of the United States; or (2)
resulted in a decision that was based on an unreasonable
determination of the facts in light of the evidence presented in the
state court proceeding.
17
violation. I respectfully dissent from the majority’s view
that there was some ambiguity in Anderson’s
unequivocal invocation of the Fifth Amendment such
that clarifying questicns were permitted.
The continued questioning violated the Supreme
Court’s bright-line rule established in Miranda v.
Arizona. Once a person invokes the right to remain
silent, all questioning must cease:
If the individual indicates in any manner, at any
time prior to or during questioning, that he wishes
to remain silent, the interrogation must cease. At
this point he has shown that he intends to exercise
his Fifth Amendment privilege; any statement
taken after the person invokes his privilege cannot
be other than the product of compulsion, subtle or
otherwise.
384 U.S. 436, 473-74 (1966).
The expansion of legitimate clarifying questions to
cover this situation is contrary to, and an unreasonable
application of, clear Supreme Court precedent.
Additionally, even a cursory examination of the
interrogation transcript reveals that the state court
made an unreasonable determination of the facts in
evaluating Anderson’s Miranda claim. Anderson’s
invocation was not ambiguous, and only one reasonable
conclusion can be gleaned from his statements,
especially his last declaration, “I plead the Fifth:” he
invoked his right to remain silent and wanted to end the
interrogation.
18
I. THE INTERROGATION
After an initial interview about the murder,
Anderson was brought to the police station for further
questioning. The relevant portion of the transcript is so
extraordinary that it bears repeating. Despite clear and
repeated invocations of his right to remain silent, the
officers continued to question Anderson about the
murder: _
Officer: | You act like you’re cryin’ like a baby,
an’, you can’t cry for someone that was
no good... an’ you killed him for a
good reason.
Anderson: No, way. I - You know what, I don’t
even wanna talk about this no more.
We can talk about it later or whatever.
I don’t want to talk about this no more. |
That’s wrong. That’s wrong.
Officer: | Right now, you show your remorse.
Immediately after this exchange, the officer
continued to interrogate Anderson regarding his drug
use on the day of the murder, including whether
Anderson had used pipes. This questioning is
significant because the murder victim was found with a
pipe next to him. The entire conversation was about the
murder. In response to this questioning, Anderson
unambiguously indicated that he wanted to end the
interrogation by stating that he was “through with
this,” wanted to “be taken into custody” and “I plead
the Fifth”:
Officer:
Anderson:
Officer:
Anderson:
Officer:
Anderson:
Officer:
Anderson:
Officer:
Anderson:
Officer:
19
I have nothin’ to worry about, nothin’
to hide. That’s why I show no
remorse. Nothin’ to worry about,
nothin’ to hide. He was my friend,
an’ there’s no way I would do it. No
way I would do it.
Were you high that day?
No, sir. I -— probably was later on.
Yes.
Did you have any dope with you that
... that day?
No, sir.
No, dope at all? What do you smoke
with?
I smoke with my ... my fingers.
When you smoke your dope what do
you do with that? How do you smoke
that?
You smoke it with pipes and stuff like
that.
Okay. What kind of pipes?
Lines.
What kind of pipes?
Anderson:
Officer:
Anderson:
Officer:
Anderson:
Officer:
Anderson:
Officer:
Anderson:
Officer:
Anderson:
Officer:
20
N’ah...I would-—I-
Well, what kind of pipes?
Uh! I’m through with this. [I’m
through. I wanna be taken in
custody, with my parole...
Well, you already are. I wanna know
what kinda pipes you have?
I plead the [F]ifth.
Plead the [F]ifth. What’s that?
No, you guys are wrong. You guys are
wrong. You guys have — I’ve tried to
tell you everything I know. As far as
I know, you guys are lying, uh,
making things up, extenuating and
that’s not right. It’s not right. [Door
opens/Closes]
We’re not makin’ anything up.
Sir, sure you are.
What are we makin’ up?
You’re tellin’ me that I didn’t have
tears in my eyes.
Yeah.
21
Anderson: You're tellin’ me, okay, that, uh, uh,
Abe said I kilt (sic) him. That’s a lie.
The questioning continued until Anderson asked for
alawyer: “I’d like to have an attorney present.” At that
juncture, the police turned off the tape recorder and,
somewhat suspiciously, following this hiatus, the officer
concluded that Anderson wanted to reinitiate the
discussion. The questioning, which took place over a
three-hour period, led to a confession by Anderson.
Il. IN CLEAR VIOLATION OF MIRANDA, THE
STATE COURT UNREASONABLY
CONCLUDED THAT ANDERSON’S
INVOCATION (“I PLEAD THE FIFTH”) WAS
AMBIGUOUS
Against this backdrop, the state court accurately
recognized that Anderson unambiguously invoked his
right to remain silent when he stated, “I plead the
Fifth,” but then went on to eviscerate that conclusion by
stating that the comments were “ambiguous in
context”:
In the present case, the defendant’s comments were
ambiguous in context because they could have been
interpreted as not wanting officers to pursue the
particulars of his drug use as opposed to not
wanting to continue the questioning at all. By
asking defendant what he meant by pleading the
fifth, the officers asked a legitimate clarifying
question.
Using “context” to make an unambiguous
invocation ambiguous defies both common sense and
22
established Supreme Court law.
Although the Supreme Court has observed that in
invoking a constitutional right, “a suspect need not
‘speak with the discrimination of an Oxford don,’”
Davis v. United States, 512 U.S. 452, 459 (1994)
(quoting id. at 476 (Souter, J., concurring)), Anderson
would meet even this erudite standard. This is not a
case where the officers or the court were left scratching
their heads as to what Anderson meant. Nothing was
ambiguous about the statement “I plead the Fifth.””
That invocation should have brought an immediate end
to questioning. Miranda, 384 US. at 473.
Instead of honoring the request, the interrogating
officers decided to “play dumb,” hoping to keep
Anderson talking by responding, “Plead the Fifth.
What’s that?” The effort to keep the conversation going
was almost comical. The officer knew what “I plead the
Fifth” meant. It is baffling that the state court
determined that “[b]y asking defendant what he meant
by pleading the Fifth, the officers asked a legitimate
clarifying question.” Nothing needed clarification.
What about the words “I plead the Fifth” would be
unclear, ambiguous, or confusing to a reasonable officer?
See Connecticut v. Barrett, 479 U.S. 523, 529 (1987)
(holding in the context of the invocation of the right to
counsel that “[{iJnterpretation is only required where the
defendant’s words, understood as ordinary people wv ould
3. See Arnold v. Runnels, 412 F.3d 859, 866 (9th Cir. 2005)
(holding, with respect to a defendant who said that he did not want
to talk on tape, that “it is difficult to imagine how much more
clearly a layperson ... could have expressed his right to remain
silent.”).
understand them, are ambiguous”). Rather, the officer
hoped Anderson would explain more about the murder,
the exact topic he did not want to talk about. Thev
knew that continuing the interrogation was “reasonably
likely to elicit an incriminating response” from
Anderson. Rhode Island v. Innis, 446 U.S. 291, 303
(1986). And they were right.
The Supreme Court has countenanced clarifying
questions only to ascertain whether the suspect actually
invoked the right to remain silent. See, e.g., Miranda;
384 U.S. at 444-45 (focusing only on the threshold
question of whether the accused “indicate[d] in any
manner and at any stage or the process that he wish[ed]
to consult with an attorney before speaking” when
deciding whether police had honored their Fifth
Amendment rights); Edwards v. Arizona, 451 U.S. 477,
484-85 (1981) (focusing on whether accused had actually
“expressed his desire” for, or “clearly asserted” his
invocation of his Fifth Amendment rights); Smith v.
Illinois, 469 U.S. 91, 95 (1984) (holding that “[t]hts case
concerns the threshold inquiry: whether Smith invoked
his right to counsel in the first instance”). Ignoring this
principle, the state court found that the comments were
ambiguous “because they could have been interpreted as
not wanting officers to pursue the particulars of his drug
use as opposed to not wanting to continue the
questioning at all.”
While the majority defers to this far-fetched
reasoning, the rationale for the state court decision falls
of its own weight. The police did not ask Anderson what
subject he did not want to discuss; nor did any of their
follow-up questioning address this topic. The state
court’s characterization is a fanciful reimagining of the
24
colloquy between Anderson and the police, and under
AEDPA, certainly an unreasonable determination of the
facts. Significantly, the question can hardly be
characterized as one to clarify or double-check whether
Anderson invoked his right to remain silent, the only
legitimate clarifying inquiry authorized by Supreme
Court precedent. Smith, 469 U.S. at 95. The state
court’s conclusion that “[iJt was the defendant, not the
interrogators, who.continued the discussion,” ignores
the bedrock principle that the interrogators should have
stopped all questioning. A statement taken after the
suspect invoked his right to remain silent “cannot be
other than the product of compulsion, subtle or
otherwise.” Miranda, 384 U.S. at 474. Finally, even
taken on its own terms, the majority’s factual hair-
splitting is mistaken. It makes no sense to split hairs
and say that maybe, just maybe, Anderson wanted to
talk about the murder and not about his drug use
because, in fact, the drug use was inextricably
intertwined with the murder. It is precisely this kind of
hair-splitting that the Supreme Court wanted to avoid
when it fashioned the bright-line rule in Miranda.
Davis, 512 U.S. at 461 (noting that the benefit of the
bright-line rule is the “clarity and ease of application”
that can be applied by officers in the real world without
“unduly hampering the gathering of information” by
forcing them to make “difficult judgment calls” with a
“threat of suppression if they guess wrong”). No guess
work was required here.
But under the majority’s interpretation of Miranda
and its progeny, every time a suspect unequivocally
invokes the right to remain silent, the police can ask
follow-up questions to clarify whether he really, really
wants to invoke the right and to parse the subject
25
matter—“what specifically do you not want to talk
about?” The majority’s holding allows the police to turn
the Fifth Amendment into a game of “Twenty
Questions,” permitting the police to continue the
interrogation and forcing the suspect to take a multiple
choice quiz. Sucha practice is tantamount to endless re-
interrogation.
Where the initial request to stop the questioning is
clear, “the police may not create ambiguity in a
defendant’s desire by continuing to question him or her
about it.” Barrett, 479 U.S. at 535 n.6 (Brennan, J.,
concurring). By parsing Anderson’s invocation into
specific subjects, the police “failed to honor a decision of
a person in custody to cut off questioning, either by
refusing to discontinue the interrogation upon request
or by persisting in repeated efforts to wear down his
resistance and make him change his mind.” Michigan
v. Mosley, 423 U.S. 96, 105-06 (1975). The net result is
that such follow-up questions allow “the authorities
through ‘badgerl[ing]’ or ‘overreaching’—explicit or
subtle, deliberate or unintentional—[to] wear down the
accused and persuade him to incriminate himself.”
Smith, 469 US. at 98.
Looking at this case through the AEDPA lens of
deference does nothing to change my conclusions. The
state court’s decision to ignore an unambiguous
declaration of the right to remain silent is directly
contrary to Miranda. To the extent the question is one
of interpretation of Miranda and related Supreme Court
precedent, the state court’s interpretation is flatly
unreasonable. See Runnels, 421 F.3d at 867. And to
characterize Anderson’s statements as ambiguous was
certainly an unreasonable finding of fact.
UI. THE STATE COURT ACTED CONTRARY TO
SUPREME COURT PRECEDENT BY USING
ANDERSON’S RESPONSES TO RE-
INTERROGATION TO FIND A VALID
WAIVER :
The state appellate court attempted to bolster its
conclusion about Anderson’s statements by claiming
that he waived his right to remain silent in continuing
to answer police questions after he stated, “I plead the
Fifth”:
By continuing to talk to the police officers,
defendant demonstrated a willingness to continue
to discuss the case .... Accordingly, while words of
invocation were spoken by the defendant, the court
concludes that, in any case, he effectively waived
the right to remain silent by what followed.
Put another way, the state court suggests that
because the officers ignored Anderson’s unequivocal
invocation of the Fifth Amendment, their questioning
caused him to keep talking, resulting in a waiver of his
right to remain silent. This analysis directly
contravenes clear Supreme Court precedent, thereby
providing another ground upon which to grant the writ
under § 2254(d)(1).
Smith mandates that all questioning must
immediately cease once the right to remain silent is
invoked, and that any subsequent statements by the
defendant in response to continued interrogation cannot
be used to find a waiver or cast ambiguity on the earlier
invocation. The Supreme Court’s somewhat lengthy but
crystal clear recitation of this principle bears repeating:
Where nothing about the request for counsel or the
circumstances leading up to the request would
render it ambiguous, all questioning must cease. In
these circumstances, an accused’s subsequent
statements are relevant only to the question
whether the accused waived the right he had
invoked. Invocation and waiver are entirely distinct
inquiries, and the two must not be blurred by
merging them together. .. .
With respect to the waiver inquiry, we accordingly
have emphasized that a valid waiver “cannot be
established by showing only that [the accused]
responded to further police-initiated custodial
interrogation.” Using an accused’s subsequent
responses to cast doubt on the adequacy of the
initial request itself is even more intolerable. “No
authority, and no logic, permits the interrogator to
proceed ...on his own terms and as if the
defendant had requested nothing, in the hope that
the defendant might be induced to say something
casting retrospective doubt on his initial statement
that he wished to speak through an attorney or not
at all.”
Smith, 469 US. at 98-99 (internal citations omitted).
The prejudice from Anderson’s confession cannot be
soft pedaled, and the error was not harmless. Brecht v.
Anderson, 507 U.S. 619, 623 (1993). I would grant the
writ of habeas corpus.
APPENDIX C
FILED
September 28 2004
Clerk, U.S. District Court
Eastern District of California
By
Deputy Clerk
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF
CALIFORNIA
JEROME ALVIN ANDERSON,
Petitioner, No. CIV S-00-2404
WBS DAD P
Vs.
C. A. TERHUNE,
Respondent. FINDINGS &
RECOMMENDATIONS
/
Petitioner is a state prisoner proceeding through
counsel with an application for a writ of habeas corpus
pursuant to 28 U.S.C. $2254. Petitioner challenges his
1998 conviction on the charge of special circumstance
murder. He seeks relief on the grounds that: (1) he was
denied his constitutional right to remain silent when
interrogating officers ignored both his request to remain
silent and his demand for an attorney and instead
continued interrogating him; (2) he was denied due
process by the introduction of his involuntary confession
into evidence; (3) he was denied due process by the
exclusion from his trial of evidence of coercion in the
interrogation process; and (4) the California statute
defining the special circumstance of lying in wait is
unconstitutionally vague and overbroad. Upon careful
consideration of the record and the applicable law, the
undersigned will recommend that petitioner’s
application for habeas corpus relief be denied.
PROCEDURAL BACKGROUND
On November 25, 1997, an information was filed in
the Shasta County Superior Court charging petitioner
with murder, in violation of California Penal Code §
187(a) (count [) and possession of a firearm by a felon,
in violation of California Penal Code § 12021(a)(1)
(count II). (Clerk’s Transcript on Appeal (CT) at 254-
55.) It was also alleged that: (1) petitioner had
previously served two prior prison terms, within the
meaning of California Penal Code § 667.5(b); (2)
petitioner personally used a firearm during the
commission of the murder, within the meaning of
California Penal Code §§ 12022.5(a) and 1203.06(a)(1);
(3) petitioner was armed with a firearm, within the
meaning of California Penal Code § 12022(a)(1); (4)
petitioner committed the murder while on parole, within
the meaning of California Penal Code § 1203.085(b); and
(5) petitioner committed the murder while lying in wait,
within the meaning of California Penal Code §
190.2(a)(15). (Id, at 256-257.) On December 1, 1997,
petitioner was arraigned and on January 5, 1998, he
pled not guilty and denied all of the allegations against
him. (Id. at 258, 352.)
On March 26, 1998, petitioner filed a motion to
dismiss the information based, in part, on the ground
that his confession to police was involuntary. (Id. at
371-402.) The trial judge denied that motion on April
17, 1998. (Id. at 484.) On May 8, 1998, petitioner filed
a motion in limine seeking to exclude from evidence his
statements to police and a motion to suppress evidence
obtained as a result of the search and seizure of his car.
(Id. at 519, 611.) After a hearing at which the parties
presented evidence, both motions were denied ina
written opinion. (Id. at 663-65, 692-702.)
Jury trial commenced on July 28, 1998. (Id. at 848.)
On August 13, 1998, the jury found petitioner guilty on
both counts and found true all of the special allegations
against him. (ld. at 906-14, 1161-67.) Subsequently,
petitioner was sentenced to life without the possibility
of parole on Count I, three years in prison on Count IT,
and a consecutive ten-year term for the firearm use
allegation. (Id. at 1197-1200; Supplemental Clerk’s
Transcript on Appeal (SCT) at 6-9.)
On September 16, 1998 petitioner filed his Notice of
Appeal. (CT at 1201.) On May 11, 1999, petitioner filed
his opening brief on appeal. (Answer, Ex. A.) The
appeal was denied by the California Court of Appeal for
the Third Appellate District, by order dated March 3,
2000. (Answer, Ex. B.) On April 10, 2000, petitioner
filed a petition for review in the California Supreme
Court. (Answer, Ex. C.) That petition was summarily
denied by order dated June 21, 2000. (Answer, Ex. D.)
On November 9, 2000, petitioner filed a petition for writ
of habeas corpus in this court.
FACTUAL BACKGROUND”
Patricia Kuykendall lived in Redding with Robyn
Higgins and Robyn’s boyfriend, Abe Santos. On
July 9, 1997, Kuykendall discovered her car had
been stolen. Around 10 a.m., defendant visited
Higgins and found out about Kuykendall’s car.
Defendant told Kuykendall that Robert Clark had
a habit of borrowing cars, duplicating the keys, then
stealing the cars later.
Defendant left Kuykendall’s house to get Clark and
both returned to Kuykendall’s home a few minutes
later. Once there, Clark was confronted and
accused of taking Kuykendall’s car. Kuykendall
yelled at Clark about her missing car. Defendant
accused Clark of stealing Kuykendall’s car...
Although Clark denied any involvement in the theft
of the car, he appeared edgy and nervous.
Kuykendall left the room to call the police around
lla.m. As she did so, Clark, Santos, and defendant
started toward the door. Clark left, and about 10
1. See Valerio v. Boise Cascade Corp., 80 FR.D. 626, 635
n.1 (N.D. Cal. 1978) Gudicial notice may be taken of court records),
aff'd, 645 F2d 699 (9th Cir. 1981.)
2. The following summary is drawn from the March 2,
2000 opinion of the California Court of Appeal for the Third
Appellate District (hereinafter Opinion), at pgs. 2-7, lodged on Feb.
5, 2C01, as Exhibit B to respondent’s Answer. These facts are
fairly supported by the record.
minutes later defendant and Santos left, stating
they were going to follow Clark.
Around 12:30 or 1 p.m., an employee at the Carl’s
Jr. drive-through window waited on three people in
a white Mustang. She gave them four hamburgers.
She remembered them because they refused to look
at her or talk to her. She identified defendant as
the driver, and described what he had been
wearing. She could only see the legs and feet of the
back seat passenger.
At around 1:05 PM. Christine Coffey, who lives on
East Stillwater Road, left with her husband for an
appointment. As they left she noticed a white Ford
Mustang with black trim and tinted windows.
Willis Neely was driving on East Stillwater Road
around the same time and also saw the white
Mustang. He saw defendant standing behind the
car. He saw two other men standing by the car who
appeared to be Hispanic, but was unable to identify
either of them because they kept their: heads down.
Neely drove back down East Stillwater about 20
minutes later and saw the car and the same three
individuals. On both occasions, Neely made eye
contact with defendant.
Clark’s body was discovered by the side of East
Stillwater Road about 2:30 p.m. He had been shot
in the head four times. A methamphetamine pipe
lay between his body and his left arm. A cigarette
lighter was in his right hand. Two pieces ofa
hamburger and afresh cigarette butt were about 10
feet fromn the body. In his pocket was a key to
Kuykendall’s car. There were spent .22 shell
casings near Clark’s feet.
Officers investigating the scene found spinout tire
track impressions about four feet from the body.
The tire tracks were distinctive because the width
of one of the tires was about one-half inch Jess than
the other track. The same tires left impressions
about 20 feet from the body. Near those tracks
were Birkenstock-type sandal footprints.
A search of defendant’s car, a white Ford Mustang
with black trim and tinted windows, revealed that
the tire tracks found near the body were similar to
the distinctive tracks made by the tires on
defendant’s car. The search also turned up two live
.22 rim fire casings under the seats similar to the
spent casings found near the body.
Defendant was first questioned on July 11, 1997.
Defendant maintained he had not seen Clark after
Clark left Kuykendall’s house. He gave officers the
clothing and shoes he had been wearing on June 9
—a pair of black shorts, a grayish tank top, and a
pair of sandals. The clothing was eventually
analyzed, and three small blood stains and a blood
smear were found on the shorts. The stains found
on the shorts were consistent with Clark’s DNA and
inconsistent with either defendant’s or Santos’s
DNA.
Defendant was taken into custody for parole
violation on July 12, 1997, at approximately 8 p.m.
After reading him his rights, officers questioned
him again about Clark’s killing. At first, defendant
denied any involvement in Clark’s murder. After
being shown portions of a videotaped interview in
which Abe Sanios confessed to watch.ng defendant
shoot Clark, defendant confessed. He admitted he
initially planned to kil] Clark by himself, then
decided to ask Santos to help. He and Santos
picked up Clark as a convenience store and drove
toward a wooded area. En route, they smoked
methamphetamine using Clark’s pipe.
They pulled over to the side of the road, and the
three of them got out of the car and talked near the
rear of the car. When defendant approached Clark,
Clark “didn’t have a care in the world. Just, still
gettin’ high.” Clark said “no matter how hard I try,
to be friends with people, or to make people friends,
they’re still not gonna like me.” Then defendant
shot Clark while Clark was kneeling down.”
3. Defendant gave the following rather incoherent
statement regarding motive: “They were always talkin’ about how
- [Sigh] he deserved to be dead for all the stuff wrong he’s done to
people, an’ how can a person think up such evil schemes and plans
te people, stuff and get away with it. I just thought back about
everything that’s happened to me, why would it happen to me, you
know, um, my wife, my kids, an’ it ... How I could still be nice to
people and try to help people out an’ now I'm in a messed up
situation ... . an’ I just said to myself, fuck, I’m tired of helpin’
people, I’m always getting’ burnt for it, or hurt, or somethin’
comes up an’ you know, the same people don’t just, there’s no
respect .... I just know it was tough but it wasn’t abnormal. Um,
outside of the normal imagination, he was doin’ it and just scared
the shit outta me. So, I said, man he’s gonna, he gonna get me
killed, man. He’s gonna get me killed. By tryin’ to disguise
himself, as me, usin’ my clothes I guess, while I was alseep an’
stuff. An’ I don’t know, man. Blame on the black man. Was
always his thing, you know. Um, an’ I just got scared for myself,
my family, ....So I asked Abe, man... if he wanted to do him.
An’ Abe said, ‘Yeah.’ Then we left ... to go look for him. I’m not
Defendant at first denied knowing what happened
to the gun, but finally admitted Santos threw it ino
Shesta Lake. The gun was later retrieved from the _
lake near where defendant indicated Santos threw
it. It was a .22 caliber semiautomatic Baretta
pistol. Firing tests determined the retrieved
weapon had fired the spent cartridge casings found
near the body.
Three witnesses reported seeing defendant with a
gun prior to the murder. In a July 11 interview,
Robyn Higgins stated she had seen defendant at a
motel on July 4, with asmall black .22 or. 25 caliber
gun with a pop-out barrel. The gun retrieved from
Shasta Lake also had a pop-out barrel. Ina July 12
interview, she stated defendant had the gun at
Kuykendall’s apartment the morning of the murder
when they confronted Clark about Kuykendall’s
missing car. She said she saw defendant make the
“sliding back” action of a semiautomatic pistol.
Defendant later admitted taking the gun out “to
look cool,” but did not think anyone had seen it.
The gun was dark and had a flip up barrel.
Sometime prior to Clark’s death, Chris Ward, a
friend of both Clark’s and defendant’s saw
defendant and Santos exchange a black gun.
Jacqueline Kelley saw defendant with a gun after
she went with him to purchase ammunition. The
gun looked similar to the one retrieved from Shasta
Lake.
a bad person, man. That’s hard to say, an’ I just — I apologize to
his family, man. I do. but I shot him.”
On July 14, 1997, Deputy Paul Moen was holding
three inmates in the medical holding cell at the
Shasta County jail —- defendant, John Zelaya, and
Daniel Bartow. Moen heard defendant ask Zelaya
and Bartow where they were housed. Then
defendant said, “do you know a young looking guy
in there, real quiet. He’s in here for murder. Tell
him his crime partner said we could have gotten
away with that shit if he would have kept his mouth
shut.”
Defendant told Zelaya he had been framed, and told
him to tell Santos not to testify. Defendant also
told Zelaya not to testify. Some people Zelaya did
not know also told him not to testify.
ANALYSIS
I. Standards of Review Applicable to Habeas
Corpus Claims
A writ of habeas corpus is available under 28 U.S.C.
§ 2254 only on the basis of some transgression of federal
law binding on the state court. See Peltier v. Wright, 15
F.3d 860, 861 (9th Cir. 1993); Middleton v. Cupp, 768
F.2d 1083, 1085 (9th Cir. 1985) (citing Engle v. Isaac,
456 US. 107, 119 (1982)). A federal writ is not available
for alleged error in the interpretation or application of
state law. See Estelle v. McGuire, 502 U.S. 62, 67-68
(1991); Park v. California, 202 F3d 1146, 1149 (9th Cir.
2000); Middleton, 768 F.2d at 1085.
However, a “claim of error based upon a right not
specifically guaranteed by the Constitution may
nonetheless form a ground for federal habeas corpus
relief where itsimpact so infects the entire trial that the
resulting conviction violates the defendant’s right to due
process.” Hines v. Enomoto, 658 F.2d 667, 673 (9th Cir.
1981) (citing Quigg v. Crist, 616 F.2d 1107 (9th Cir.
1980)). See also Lisenba vy. California, 314 US. 219, 236
(1941); Henry v. Kernan, 197 F.3d 1021, 1031 (9th Cir.
1999). In order to raise such a claim in a federal habeas
corpus petition, the “error alleged must have resulted in
a complete miscarriage of justice.” Hill v. United States,
368 U.S. 424, 428 (1962). See also Henry, 197 F.3d at
1031; Crisafi v. Oliver, 396 F.2d 293, 294-95 (9th Cir.
1968). Habeas corpus cannot be utilized to try state
issues de novo. Milton v. Wainwright, 407 U.S. 371, 377
(1972).
Because this action was filed after April 26, 1996,
the provisions of the Antiterrorism and Effective Death
Penalty Act of 1996 (“AEDPA”) are applicable. See
Lindh v. Murphy, 521 U.S. 320, 336 (1997); Calderon v.
United States Dist. Ct. (Beeler), 128 F3d 1283, 1287
(9th Cir. 1997). Section 2254(d) as amended by the
AEDPA, set forth the following standards for granting
habeas corpus relief:
An application for a writ of habeas corpus on
behalf of a person in custody pursuant to the
judgment of a State court shall not be granted with
respect to any claim that was adjudicated on the
merits in State court proceedings unless the
adjudication of the claim —
(1) resulted in a decision that was contrary to, or
involved an unreasonable application of, clearly
established Federal law, as determined by the
Supreme Court of the United States; or
(2) resulted in a decision that was based on an
unreasonable determination of the facts in light of
the evidence presented in the State court
proceeding.
28 U.S.C. § 2254(d). See also Penry v. Johnson, 532
U.S. 782, 792-93 (2001); Williams v. Taylor, 529 US.
362 (2000); Lockhart v. Terhune, 250 F 3d 1223, 1229
(9th Cir. 2001).
IJ. Fifth Amendment Claim
Petitioner’s first claim is that his Fifth Amendment
right to remain silent was violated by the introduction
into evidence of his confession to police. He argues that
the interrogating detective improperly continued to
question him after he had indicated a desire to remain
silent and asked for an attorney. He contends that his
continued conversation with police after he invoked his
“Miranda” rights did not constitute a waiver of those
rights but was “only a sham procedure in which the
defendant was told what words to repeat by the
interrogating officers.” (Points and Authorities in
Support of Pet. (hereinafter P&A) at 14.) Petitioner
argues that both his confession and the murder weapon,
as the “tainted fruit” of the improper questioning,
should have been excluded from evidence. Respondent,
on the other hand, argues that the state courts’
rejection of these arguments were a reasonable
application of the decisions in Miranda v. Arizona, 384
US. 436 (1966) and Oregon v. Bradshaw, 462 U.S. 1039
(1983).
A. Facts/State Court Rulings
As described above, petitioner filed a pretrial
motion in limine to exclude from evidence his
statements to police. (CT at 519.) Therein, petitioner
argued that the failure of the police to respect his
invocations of his right to remain silent and right to
counsel violated the Fifth Amendment and the dictates
of Miranda v. Arizona, (Id. at 527.) He also argued that
his confession was involuntary under the due Process
Clause of the Fourteenth Amendment: (Id. at 536.) The
trial court held a hearing on the motion, at which both
the prosecution and the defense presented evidence. (Id.
at 663-65, 695-702; RT at 217-32.) The motion was
denied in a written order dated June 17, 1998. (CT at
695-702.)%
On direct appeal, petitioner challenged the trial
court’s June 17, 1998 ruling. In rejecting petitioner’s
arguments, the California Court of Appeal explained its
reasoning, the trial court’s ruling, and the facts
surrounding this claim as follows:
On appeal defendant challenges the trial court’s
ruling with respect to two of his statements. The
4. The trial court reviewed audiotapes of the confession
prior to rendering a ruling on petitioner’s argument that it was
involuntary and should have been suppressed. (See RT at 18; CT
at 695.) It is not clear whether the state appellate court was
provided with the audiotapes or reviewed them in connection with
its opinion. The audiotapes have not been lodged in this action.
However, a transcript of the relevant portions of the police
interview have been provided to this court. (See CT at 547-610;
Clerk’s Augmented Transcript on Appeal (CTA) at 1-18.) This
court has reviewed the transcript and has determined that the
audiotapes are not necessary to a resolution of the instant petition.
first is defendant’s statement, “I don’t even wanna
talk about this no more... . plead the Fifth.” The
second ruling challenged by defendant regards his
statement, “I'd like to have an attorney present.”
We consider each statement in context.
The first statement came as Detective Tom
O’Connor was accusing defendant of pretending to
cry and have sympathy for Clark:
[O’Connor:] “You act like you’re cryin’ like a baby,
an, you can’t cry for someone that was a no good .
.. an’ you killed him for a good reason.
[Defendant:] No way. I ~ You know what, I don’t
even wanna talk about this no more. We can talk
about it later or whatever. I don’t want to talk
about this no more. That’s wrong. That’s wrong.
[O’Connor:] “Right now, you show your remorse.
[Defendant:] “(Voice raised] I have nothin’ to
worry about, nothin’ to hide. That’s why I show no
remorse. Nothin’ to worry about, nothin’ to hide.
He was my friend, an’ there’s no way I would do it.
No way I would do it.
[O’Connor:] “Were you high that day?
[Defendant:] “No, sir. I —- probably was later on.
Yes. |
{O’Connor:] “Did you have any dope with you that
... that day?
(Defendant:] “No, sir.
[O’Connor:] “No, dope at all? What do you smoke
with?
[Defendant:] “I smoke with my... my fingers.
[O’Connor:]: “When you smoke your dope what do
you do with that? How do you smoke that?
{Defendant:] “You smoke it with pipes and stuff
like that.
{O’Connor:] “Okay. what kind of pipes?
[Defendant:] “Lines.
[O’Connor:] “What kind of pipes?
{[Defendant:] “N’ah...I would -I-
[O’Connor:] “Well, what kind of pipes?
{[Defendant:] “Uh! I’m through with this. I’m
through. I wanna be taken in custody, with my
parole...
[O’Connor:] “Well, you already are. I wanna know
what kinda pipes you have?
[Defendant:] “I plead the fifth.
[O’Connor:}] “Plead the fifth. What’s that?
[Defendant:] “No, you guys are wrong. You guys
are wrong. You guys have — I’ve tried to tell you
everything I know. As far as I know, you guys are
lying, uh, making things up, extenuating and that’s
not right. It’s not right. [Door opens/Closes]
[O’Connor:] “We’re not makin’ anything up.
[Defendant:] “Sir, sure you are.
[O’Connor:] “What are we makin’ up?
{[Defendant:] “You’re tellin’ me that I didn’t have
tears in my eyes.
[O’Connor:] “Yeah.
{[Defendant:] “You’re tellin’ me, okay, that, uh, uh,
Abe said I kilt [sic) him. That’s a lie.”
The trial court concluded: “Given the totality of
the circumstances in this matter, the court
concludes that while the defendant articulated
words that could, in the isolation [sic], be viewed as
an invocation of his right to remain silent, the
defendant did not intend to terminate the
interview. The interrogating officer did not
continue or reinitiate the interview by posing the
question: ‘Plead the fifth. what’s that?’ The
questions can reasonably be charactcrized as a
request for clarification or confirmation that the
defendant wished to assert his right to remain
silent, and nothing more. What followed is
important to a determination of the question.
Specifically, the defendant launched off on a
discourse and, ultimately, engaged in a debate
without making any reference to an invocation of
the right to remain silent. It was the defendant, not
the interrogators, who continued the discussion.
Accordingly, while words of invocation were spoken
by the defendant, the court concludes that, in any
case, he effectively waived the right to remain silent
by what followed.”
Defendant maintains his statement, “I plead the
fifth” was an invocation of his right to remain
silent, and the trial court’s characterization of the
officer’s follow-up question as simply clarification
was disingenuous.
* ok
Here, the interrogating officer testified he believed
that in saying, “I plead the fifth” defendant was
simply indicating an unwillingness to discuss the
details of his drug use, and not a desire to terminate
the interrogation.
oe oe oe
The law permits the police to “clarify” whether or
not a suspect comprehends or waives his Miranda
rights where the invocation of rights is ambiguous.
(People v. Johnson (1993) 6 Cal. 4th 1, 27; People v.
Carey (1986) 183 Cal. App. 3c 99, 103.) In the
present case, the defendant’s comments were
ambiguous in context because they could have been
interpreted as not wanting officers to pursue the
particulars of his drug use as opposed to not
wanting to continue the questioning at all. By
asking defendant what he meant by pleading the
fifth, the officer asked a legitimate clarifying
question.
In order to assert the privilege against self
incrimination, defendant’s attitude must have been
such as to show a present lack of willingness to
discuss the case with the police. (People v. Dreas
(1984) 153 Cal. App. 3d 623, 630) By continuing to
talk to the officers, defendant demonstrated a
willingness to continue to discuss the case.
The second statement which defendant claims was
an invocation of his Miranda rights occurred after
he viewed the videotape of Santos’s confession
implicating him in the murder. After defendant
stated, “I’d like to have an attorney present” the
following discussion ensued:
[BISHOP:] “Okey [sic]
[CLEMENS:] “OK fine.
[DEFENDANT:] “Sorry, man.
[bishop:] “No, don’t apologize
[O’CONNOR:] “Okay, 7-12-97, about 22:45, ten
forty-five, uh, p.m. on Saturday. This isit. [Tape
goes off/on]
[DEFENDANT:] “Lied...
[MCDANNOLD:] “Yeah, yeah...
[DEFENDANT:) “Abe did it.
IMCDANNOLD:] “Because we don’t what the fuck
happened. (sic] ‘Cause you didn’t tell us.
[DEFENDANT:] “Abe, too?
[MCDANNOLD:] “Probably both of ya. We don’t
...y-you know, you’re askin’ us questions, that we
really can’t answer. because we don’t know the
answers to ‘em. So far, Romey, you know as well as
I do, these guys have not lied to you, not one bit.
They’ ve told ya the truth, right from the get-go.
Now, you’re askin’ questions that we can’t answer.
We’re not judges, and we’re not jurors. We cannot
answer that. an’ there’s acouple of reasons that we
can’t answer that. Murder, damn sure, his life. But
there’s a bunch of degrees of murder.
[DEFENDANT:] “Right.
[MCDANNOLD:] “An’ we don’t know your side of
the story. And now, we can’t talk to you.
[DEFENDANT:] “Oh, man. I want to talk to you.
I need, I need to talk to you Harry [Bishop].
(MCDANNOLD:] “Listen, we can’t...
[DEFENDANT:] “I do man.
[MCDANNOLD:] ... talk to you because you said
you wanted an attorney. We can’t talk to you.
[DEFENDANT:] “Well, I can talk. Yeah, I mean,
can’t I
[MCDANNOLD:] “What do you have to...
[BISHOP:] “Do you want to talk [to} us?
[DEFENDANT:] “I want to talk to you man why I
just [Sigh]
[CLEMENS:] “What’d ya wanna do?
[DEFENDANT:] “I’m scared man. I’m scared.
[MCDANNOLD:] “You should be. You’re lookin,
right down the barrel of the rest of your life. An’
you should be scared. That’s what it’s all about
Romey. But we’re tryin’ to give you the chance to
talk to us. An’ tell us your side of the story an’ you
say, you want an attorney. We can’t talk to you.
[CLEMENS:] “He said, he wants to talk to Harry.
| So can Harry and [Inaudible ...] talk? ...
[MCDANNOLD:] “No. Not until he says, I want to
talk to him without an attorney. The law says we
can’t talk to you. Until you say, ‘Okay, I was just
' kiddin, I don’t want an attorney.’ That’s the only
way it can happen, Romey. You’re the one that
said, that you wanted an attorney. An’ the law tells
us we can’t talk to you from that point on. We
cannot ask you any questions. We’re gonna play by
the rules. |
DEFENDANT:] “Okay, I — I was just jokin’. I
don’t wanna talk — Or I want to talk to Harry, the
bishop. You know the thing about the attorney, is
...18 wrong of whatever, I don’t need an attorney.
Is that fair to say so guys [sic] don’t get busted
outta your jobs.
[MCDANNOLD:] “Okay. Let me ask you ... i-is
the tape runnin’?
[O’CONNOR:] “Yes.
(MCDANNOLD:] “Turn the tape on and say into
the tape, that you’ve changed you’re [sic] mind.
[DEFENDANT:] “I’ve changed my mind [sic]. It’s
i 3 oe
[MCDANNOLD:] “Say it into the tape, you don’t
want an attorney.
[DEFENDANT:] “I don’t want an attorney. I’ve
changed my mind. :
[MCDANNOLD:] “Okay, have ... have you been
promised anything?
(DEFENDANT: ]} No, I'd just like to get a cigarette.
[MCDANNOLD:] Okay.
[DEFENDANT:)} “Can I get a cigarette though?
[MCDANNOLD:] “Wait a minute, okay? We’re
gonna cleam this thing up, I’m... You want -
You’re tellin, us you want to do somethin’. An’ I’m
tryin’ to make it legal for you to do it. Okay?
[DEFENDANT:] “Okay.
[MCDANNOLD:] “Has anybody in this room...
[DEFENDANT:] “No one’s promised me... paid
me...uh
[MCDANNOLD:] “Listen .. . listen, listen to me,
okay? Let me do this and do it right okay?
[DEFENDANT:] “All right, I apologize.
[MCDANNOLD:] “Okay. Has anybody in this
room promised you anything?
[DEFENDANT:] “No, sir.
{MCDANNOLD:] Has anybody in this room
threatened you for anything at all?
[((DEFENDANT:] “No, sir.
[MCDANNOLD:] “Do you feel intimidated by
anybody in this room?
[DEFENDANT:] “No, sir.
[MCDANNOLD:] “Do you feel that — Has anybody
in this room, told you that if you didn’t talk with us
or you did talks to us, that somethin’ good was
gonna happen?
[DEFENDANT:] “No, sir.
[MCDANNOLD:] “Okay, so you’ve made the
decision, that you want to talk to us and you do not
want an attorney, is that correct?
|{DEFENDANT:] “(Pause] Yes, sir.
i(MCDANNOLD:] “That’s absolutely correct, now
you kinda hesitated a little bit...
[DEFENDANT:] “Well...
[MCDANNOLD:] “You don’t want an attorney...
[DEFENDANT:] “Yes, sir.
[MCDANNOLD:] “... right here inthis room...
[DEFENDANT:] “Yes, sir.
[MCDANNOLD:] “... right now, is that correct?
[DEFENDANT:] “Yes, sir.”
Defendant contends it is “apparent from the
transcript” that during the time the tape was
turned off he was asking what would happen to him
as a result of the charges, and that such a question
did not waive his right to remain silent, nor did it
permit re-initiation of the interrogation.
When an accused invokes the right to counsel after
a Miranda advisement, the police must immediately
cease interrogation, which can resume in the
absence of an attorney only if (1) the accused
initiates the conversation, and (2) the
circumstances indicate that the accused has made
‘a knowing and intelligent waiver of the right to
counsel. (Oregon v. Bradshaw (1983) 462 US. 1039
(77 L.Ed.2d 405, 103 S.Ct. 28301; Edwards v.
Arizona (1981) 451 U.S. 477 [68 L.Ed.2d 378, 101
S.Ct. 1880].)” (People v. Sims (1993) 5 Cal.4th 405,
48 (conc. & diss. opn. of Justice Kennard).)
However, these two issues are separate, and cannot
be melded together. Oregon v. Bradshaw, supra, at
p. 1045.)
In Oregon v. Bradshaw, supra, the defendant
invoked his right to counsel, and questioning
ceased. (462 US. at p. 1042 [77 L.Ed.2d at p. 410).)
Later, the defendant inquired, “,Well, what is going
to happen to me now?’” (Id. at p. 1042 (77 L.Ed.2d
at p. 4101.) The officer responded that the
defendant did not have to talk since he had
requested an attorney, and that if he talked it had
to be of his own free will. (Ibid.) The officer
suggested the defendant take a polygraph test. The
defendant took the test, did not pass it, and
subsequently admitted the crime. (Ibid.)
In holding the defendant’s confession admissible,
the court said the initiation of a conversation by a
defendant does not itself amount to a waiver of a
previously invoked right to counsel but that the
accused himself could initiate further
communication, exchanges, or conversations with
the police. (Oregon v. Bradshaw, supra, 462 US. at
p. 1044.) If such a conversation takes place after
the accused has expressed a desire to deal with the
police only through counsel, the burden remains
upon the prosecution to show the defendant waived
his right to have counsel present during the
interrogation. (Ibid.)
“There can be no doubt in this case that in asking,
‘Well, what is going to happen to me now?’,
respondent initiated further conversation in the
ordinary dictionary sense of that word. While we
doubt that it would be desirable to build a
superstructure of legal refinements around the
word ‘initiate’ in this context, there are
undoubtedly situations where a bare inquiry by
either a defendant or by a police officer should not
be held to ‘initiate’ any conversation or dialogue.
There are some inquiries, such as a request for a
drink of water or a request to use a telephone that
are so routine that they cannot be fairly said to
represent a desire on the part of an accused to open
up a more generalized discussion relating directly
or indirectly to the investigation. Such inquiries or
statements, by either an accused or a police officer,
relating to routine incidents of the custodial
relationship, will not generally ‘initiate’ a
conversation in the sense in which that word was
used in Edwards. [fl] Although ambiguous, the
respondent’s question in this case as to what was
going to happen ts him evinced a willingness and a
desire for a generalized discussion abcut the
investigation; it was not merely a necessary inquiry
arising out of the incidents of the custodial
relationship. It could reasonably have.been
interpreted by the officer as relating generally to
the investigation.” (Oregon v. Bradshaw, supra,
462 US. at pp. 1045-1046.)
Here, if we accept defendant’s contention he asked
what was going to happen to him next during the
brief period in which the tape was turned off, we
find no difference between such a question and the
query in Oregon v. Bradshaw, supra. In both
instances, the accused initiated a communication
with the interrogators indicating a willingness to
discuss the criminal investigation. Moreover, the
first recorded words out of defendant’s mouth were,
“(lied” then “Abe did it.”” Certainly, these
statements evinced a willingness and desire to
discuss the investigation. (Oregon v. Bradshaw,
supra, 462 U.S. at pp. 1045-1046 [77 L.Ed.2d at. .
412].) Therefore, we hold defendant re-initiated the
interrogation.
Whether defendant waived his rights after re-
initiating the conversation is a separate issue.
*
Here, defendant clearly waived his Miranda rights
before making any admissions or confessions. The
trial court did not err in finding defendant’s
statements admissible.”
5. The officer running the tape recorder testified the
recorder was only off for a second, and the only person speaking
during the pause in the tape was defendant.
6. The trial court ruled on petitioner’s argument that his
confession was given in violation of his right to counsel as follows:
In this instance, from the transcript, the tapes,
and the testimony of witnesses McDannold
andO’Connor, the court concludes that there was
an.express invocation, the invocation was honored
and the defendant, himself, immediately continued
voluntarily to discuss the matter and engaged the
officers im conversation. The defendant made it
clear that he wanted to speak with the
interviewers despite his invocation of the right to
counsel and on following pages of the transcript it
was explained to him that if he wished to do so, he
would have to expressly state on the tape that he
did not want an attorney, which he did. There
appeared from the audio tape and the
(Opinion at 9-22.)
B. Legal Principles
“The prosecution may not use statements, whether
exculpatory or inculpatory, stemming from custodial
interrogation of the defendant unless it demonstrates
the use of procedural safeguards effective to secure the
privilege against self-incrimination.” Miranda v.
Arizona, 384 U.S. at 444. To this end, custodial
interrogation must be preceded by advice to the
potential defendant that he has the right to consult with
a lawyer, the right to remain silent and that anything
stated can be used in evidence against him. Id. at 473-
74. Once Miranda warnings have been given, ifa
suspect makes an unambiguous statement invoking his
constitutional rights, “all questioning must cease.”
Smith v. Illinois 469 U.S. 91, 98 (1984). See also
Miranda, 384 U.S. 473-74; Michigan v. Mosley, 423 U.S.
96, 10 (1975). Any subsequent statements are relevant
only to the question whether the accused waived the
right he had previously invoked. Smith, 469 U.S. at 98.
“Invocation and waiver are entirely distinct inquiries,
and the two must not be blurred by merging them
transcription nothing coercive about the dialog
associated with a clear waiver of counsel following
the invocation. He was not threatened with harm
or promised a benefit... Accordingly, and
pursuant to the referenced authority, the court
concludes that the confession is not inadmissible in
light of the invocation because an immediate
knowin; and intelligent waiver followed based
upon an initiation of further communication by
the defendant.
(CT at 699.)
together.” Id.
Invocation of the right to remain silent must be
construed liberally. See Hoffman v. United States, 341
U.S. 479, 486 (1951). Thus, a suspect need not rely on
any special combination of words to invoke the right to
silence. Quinn v. United States, 349 U.S. 155, 162
(1955). However, “[a]lthough a suspect ‘need not speak
with the discrimination of an Oxford don,’ he must
articulate his desire to [invoke his constitutional rights]
sufficiently clearly that a reasonable police officer in the
circumstances would understand the statement to be
{an invocation of his constitutional rights].” Davis v.
United States, 512 U.S. 456, 459 (1994). Accordingly, in
order to determine whether a suspect invoked this Fifth
Amendment right, “a court should examine the entire
context in which the claimant spoke.” Bradley, 918 F.2d
at 342 (quoting United States v. Goodwin, 470 F.2d 893,
902 (5th Cir. 1972)).7 Often, “a suspect’s statement as
to his willingness or unwillingness to answer questions
or his silence in response to some questions does not
constitute even an ambiguous or equivocal invocation of
the right to remain silent.” United States v. Ramirez,
79 F.3d 298, 304 (2d Cir. 1996) (defendant’s silence in
the wake of two questions, while answering others, did
7. This inquiry is sometimes made more complex given
that a person in custody may selectively waive his right to remain
silent by indicating that he will respond to some questions, but not
to others. Mosley, 423 U.S. ‘at 103-04; Bruni v. Lewis, 847 F.2d
561, 564 (9th Cir. 1988); see also United States v. Garcia-Cruz, 978
Fi2d 537, 541-42 (9th Cir. 1992) (finding that when considered in
context the appellant’s staterment could reasonably be construed as
only a selective revocation of his waiver of the right to remain
silent which did not apply ‘to the line of questioning at issue on
appeal).
not constitute an invocation of his right to remain
silent). See also United States v. Mikell, 102 F.3d 470,
476 (11th Cir. 1996) (“we hold that a suspect’s refusal to
answer certain questions is not tantamount to the
invocation, either equivocal or unequivocal, of the
constitutional right to remain silent and that
questioning may continue until the suspect articulates
in some manner that he wishes the questioning to
cease”); Bradley, 918 F.2d at 342-43 (suspect’s
statement that he would not discuss whether he had
been involved in the crime under investigation when
followed by suspect’s denial of involvement and
providing of an alibi was all part of an “ongoing stream
of speech” and was neither an invocation of the right to
remain silent nor the equivalent of silence).
The United States Supreme Court has rejected a per
se proscription of any further interrogation once the
person questioned has indicated a desire to remain
silent, holding instead “that the admissibility of
statements obtained after the person in custody has
decided to remain silent depends under Miranda on
whether his “right to cut off questioning’ was
‘scrupulously honored.’” Mosley, 423 U.S. at 104. The
Ninth Circuit has determined that where there has been
an equivocal assertion of a constitutional right, the
attending officer may ask questions to clarify the
defendant’s wishes, but only so long as he does not
continue a general interrogation. United States v.
Rodriguez-Gastelum, 569 F.2d 482, 484 (9h Cir. 1978)
(en banc); see also Robtoy v. Kincheloe, 871 F2d 1478,
1482 (9th Cir. 1989) (if a defendant’s statement is
ambiguous or equivocal, the police may only ask
questions to clarify the defendant’s desire to exercise his
Miranda rights); Bruni, 847 F-2d at 563 (“if a defendant
makes an equivocal request for counsel during
interrogation, officials must stop further questioning,
except to clarify the defendant’s desire for counse!”’).
With respect to an accused’s request for counsel,
the Supreme Court has established a “bright-line rule”
that all questioning must cease once such a request is
made. Edwards v. Arizona, 451 U.S. 477, 485 (1981). If
the accused invokes his right to counsel, courts may
admit his responses to further questioning only on
finding that he (a) initiated further discussions with the
police, and then (b) knowingly and intelligently waived
the right he had invoked. Id. at 485-86. See also Wyrick
v. Fields, 459 U.S. 42, 44 (1982) (per curiam) (before a
suspect in custody can be subjected to further
interrogation after requesting an attorney there must be
a showing that the “suspect himself initiates dialogue
with the authorities”). A valid waiver of the right to
' counsel cannot be established by showing only that the
suspect responded to further police initiated custodial
interrogation even if he has been advised of his rights.
Edwards, 451 U.S. at 484. Waivers of the right to
counsel must not only be voluntary, but must also
constitute a knowing and intelligent relinquishment or
abandonment of the right. Id. at 482.
Finally, where an involuntary confession is
improperly admitted into evidence at trial, a reviewing
court must apply a harmless error analysis, assessing
the error “in the context of other evidence presented in
order to determine whether its admission was harmless
beyond a reasonable doubt.” Fulminante, 499 US. at
308. In the context of habeas review, the standard is
whether the error had substantial and injurious effect or
influence in determining the jury’s verdict. See Brecht
v. Abrahamson, 507 U.S. 619, 637 (1993); Beatty, 303
F.3d at 994; Henry, 197 F.3d at 1029. The analysis
must be conducted with an awareness that “a confession
is like no other evidence,” and that “a full confession
may have a ‘profound impact’ on the jury.” Fulminante,
499 US. at 296. See also Henry, 197 F.3d at 1029-30.
C. Analysis
1. Right to Remain Silent
Prior to his police interview, petitioner was advised
of his constitutional rights pursuant to Miranda vy.
Arizona. (CT at 547-48.) He stated that he understood
those rights. (Id.) Although petitioner did not make an
express waiver of his rights, he proceeded with the
interview without comment. (Id.) The state appellate
court found that this willingness to continue the
interview constituted a valid waiver of petitioner’s
constitutional] rights. (Opinion at 8-9.) This conclusion
is reasonable and has not been challenged by petitioner
in this habeas proceeding. Later during the interview
set forth above, while being questioned regarding the
details of his usage, petitioner informed his
interrogators that he “[didn’t] want to talk about this
no more. We can talk about it later,” and that he
wanted to “plead the fifth” (CT at 562.) When asked by
one of the interrogating officers, “[wlhat’s that?”
petitioner responded that the police were lying and
“making things up” and that he had tried to tell them
everything he knew. (Id.) Petitioner then engaged in a
lengthy back-and-forth exchange with the officers,
during which the police offered to allow petitioner to
hear the audiotape of Abe Santos’ confession. After
listening to the audiotape, petitioner confessed to the
murder. Petitioner now argues that his statement that
he wanted to “plead the fifth” was an invocation of his
right to remain silent, following his initial waiver, that
was not honored by his interrogators. Therefore, he
contends, all of his subsequent statements should have
been suppressed. Respondent counters that petitioner’s
statement was not an assertion of the right to remain
silent and that all subsequent statements were properly
admissible.
The state trial court held that, although petitioner’s
statements that he wanted to be taken into custody, that
he would prefer to continue the interview at a later
time, and that he wanted to “take the fifth” appeared to
be an invocation of his right to remain silent, his later
actions made it clear that he did not actually intend or
desire to terminate the interview. (Id. at 696, 701.) The
trial court also concluded that the police officer’s
question, “Take the fifth. What’s that?” could
“reasonably be characterized as a request for
clarification or confirmation that petitioner wished to
assert his right to remain silent, “and nothing more.”
(Id.) On appeal, the state appellate court concluded that
petitioner’s remarks were “ambiguous, that the police
subsequently asked “a legitimate clarifying question,”
and that petitioner’s continued willingness to discuss
the case indicated that he had not invoked his right to
silence in the first instance. (Opinion at 13-14.) In
short, both stat# courts concluded that petitioner did
not wish to terminate the interview, regardless of his
remarks.
This court also concludes that petitioner’s
statement “I plead the fifth,” spoken in the context of a
discussion about drug use, was not a clear indication
that petitioner wanted to terminate the entire interview.
The phrase “take the fifth” usually refers to the refusal
to respond to a question on the witness stand, not to the
desire to terminate an entire police interrogation.
Although the phrase indicates that petitioner did not
want to talk about something, it was not clear exactly
what it was that he didn’t want to talk about, or even
whether he seriously desired to cut off questioning.
Certainly it would have been reasonable for a police
officer in this situation to ask a question designed to test
the meaning of petitioner’s statement.” See Rodriguez-
Gastelum, 569 F.2d at484; Robtoy, 871 F.2d at 1482.
Therefore, the state courts’ conclusion that Detective
O’Connor’s subsequent remarks were merely intended
to clarify petitioner’s ambiguous statement is a
reasonable interpretation of the facts in light of the
evidence. Further, petitioner’s subsequent conduct,
where he continued to engage in an ongoing stream of
conversation with the detectives following the alleged
invocation of his right to remain silent, belies an
intention to termiinate the interview. Under the
8. Petitioner argues that the detectives’ questions about
his drug usage were not directea toward determining his possible
criminal liability for drug usage, but were designed to learn
whether petitioner was using the type of drug paraphernalia
(methamphetamine pipe) that wus found near the victim’s body.
(P&A at 21.) Therefore, petitioner argues, he wished to end the
interrogation because he realized that the questioning was focusing
on the circumstances of the murder. (Id.) This argument,
although plausible, is based on speculation. The opinion of the
state appellate court that petitioner n.ay have merely wanted to
terminate the discussion about his drug use is not unreasonable.
9. Regarding a suspect’s waiver of the right to remain
silent it has been observed:
Precisely when waiver may be implied depends on
circumstances presented here, the conclusion of the
California Court of Appeal that petitioner did not invoke
his right to silence is not contrary to, or an unreasonable
application of feceral law. Accordingly, petitioner is not
entitled to relief on this claim.
2. Right to Counsel
The parties agree that petitioner invoked his right
to counsel by virtue of his statement, “I’d like to have an
attorney present.” As reflected in the state court record,
after petitioner made this statement the detectives
the circumstances. Even so, there are certain
types of cases in which courts routinely conclude
that a defendant who has professed an
understanding of his right to remain silent has
waived that right. For example, a defendant will
be held to have effected a waiver when, after
receiving warnings and asserting (equivocally or
unequivocally) a right to remain silent, he
spontancously recommences the dialogue with his
interviewers. [citations omitted]. So, too, if a
d2fendant’s incriminating statements were made
either as part of a “steady stream” of speech,
Bradley v. Meachum, 918 F.2d 338, 342 (2d Cir.
190), or as part of a back-and-forth conversation
with the police, Baskin v. Clark, 956 F2d 142, 146
(7th Cir. 1992), courts regularly have found
waivers. A waiver of Miranda rights also may be
implied when, after having received Miranda
warnings, a criminal defendant responds
selectively to questions posed to him. See United
States v. Soliz, 129 F.3d 499, 503 (9th Cir. 1997);
United States v. Eaton, 890 F.2d 511, 513-14 (1st
Cir. 1989) (Breyer, J.); United States v. Chong, 829
F.2d 1572, 1574 (11th Cir. 1987).
Bui v. Dipaolo, 170 F.3d 232, 240 (1st Cir. 1999).
immediately terminated the interview and turned off
the tape recorder. However, as soon as the tape
recorder was turned off, petitioner asked what was going
to happen to him and continued to converse with the
officers. Accordingly, the tape recorder
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