Legal Updates Fall 2016
Legal Updates Fall 2016
Confession suppressed - made under the influence of fear produced by threats
In State v. Belle (September 2016) the Court of Appeals of Oregon ruled that the defendant’s incriminating statements were made “under the influence of fear produced by threats” and should have been suppressed at trial. From the Court of Appeals opinion:
Defendant was approached by his cousin, Robey, who asked defendant if he wanted to make some money. Specifically, Robey asked defendant for his automated teller machine (ATM) card and personal identification number (PIN). Robey did not tell defendant what she planned to do with his ATM card and PIN, but defendant did know that Robey had “made checks” in the past.
Over the next several days, an unknown person used US Bank ATMs to deposit three checks into defendant's personal checking account. US Bank sought reimbursement for the amounts listed on the checks but all three were returned as forged or counterfeit. Before US Bank learned that the checks were fraudulent, the money had been withdrawn from defendant's account.
[Detective] Fields went to defendant's home to question him about the suspicious activity. Defendant initially denied knowing anything about the fraudulent activity on his account. Fields asked defendant if he was in the National Guard, and defendant responded that he was. Fields then asked defendant if he knew about the military code of conduct, and defendant said that he did. Fields told defendant, “Well, this matter [can] be handled on the state level and not under the military code. And I have not spoken to your commanding officer.” Fields continued, “I'm really interested to know who was actually making these checks.”
Following those statements, defendant told Fields that his cousin, Robey, had made the checks and that defendant had received about $1,500 for allowing Robey to access his account.
Defendant argues that “his initial statement was the product of a threat and implied promise of leniency,” therefore, under Powell and ORS 136.425, the trial court erred when it failed to suppress that statement. Defendant contends that Fields made “a threat to contact defendant's commanding officer if he did not cooperate and a promise that he would not contact defendant's commanding officer if defendant did cooperate.” (Emphasis in original.)
In arguing to the contrary, the state … argues that Fields' threat was insufficiently compelling because “defendant knew that any admission or confession would likely result in his own state-court prosecution.” We recognize that defendant was not promised immunity from state-level prosecution in this case; instead, Fields told defendant that the matter could be handled on the state level, as opposed to under the military code of conduct, and that he had not spoken to defendant's commanding officer…. Because statements promising not to involve third parties or without an explicit promise of leniency or immunity from state prosecution can be sufficiently compelling to require suppression of a defendant's confession, we reject the state's…. argument.
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The suspect does not have to know all of the possible issues they will be questioned about to make a knowing and intelligent waiver of rights
In Coddington v. Royal, Warden (September 2016) the US District Court, W.D. Oklahoma, upheld the lower court’s decision that the defendant made a valid waiver of his Miranda rights, even though he did not know he was going to be questioned about a murder. From the District Court’s opinion:
Petitioner's first contact with law enforcement came two days after the murder when some Oklahoma City Police Officers assigned to the robbery unit confronted petitioner at his apartment complex about his involvement in multiple robberies. While standing outside petitioner's apartment, petitioner told the officers, “You guys have caught me. I did all of those robberies. I should have pulled that knife and made you guys kill me. I'm not going back to prison.” These incriminating statements prompted Oklahoma City Police Officer Roger Smart to give petitioner his Miranda rights. Using a standard form, Officer Smart read petitioner his rights. Petitioner acknowledged his understanding of these rights and he told Officer Smart that he desired to waive them. He then signed the waiver of rights portion of the form. Petitioner was questioned about the robberies as they stood outside his apartment.
Later, petitioner was taken downtown and interviewed by Oklahoma City Police Officer Glen DeSpain, who like Officer Smart was a part of the robbery unit, and Choctaw Police Officer Wes Weaver, who wanted to talk to petitioner about the murder. This interview was videotaped. Officer DeSpain testified that he did not read petitioner his Miranda rights because he had been told by Officer Smart that petitioner had already waived his Miranda rights. Officer DeSpain was in possession of the waiver petitioner had signed earlier that day, and at the start of the interview, Officer DeSpain asked petitioner if he remembered being advised of his rights. Petitioner responded affirmatively…. In the course of this interview, petitioner confessed to the murder…
In his first challenge to the admission of his confession, petitioner contends that his waiver was invalid because he was not advised that the police wanted to talk to him about the murder. Labeling this failure to advise as a misrepresentation, petitioner argues that his confession should not have been admitted.
In Spring, 479 U.S. at 577, the Supreme Court specifically held “that a suspect's awareness of all the possible subjects of questioning in advance of interrogation is not relevant to determining whether the suspect voluntarily, knowingly, and intelligently waived his Fifth Amendment privilege.” With reference to Spring, the OCCA rejected petitioner's argument …. Clearly, the OCCA's decision here was not unreasonable.
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Statements indicating that juries were more likely to be lenient if presented with a full confession were not coercive
In State v. Cox (August 2016) the Supreme Court of Minnesota held that defendant's confession was not rendered involuntary when police promised they would look into his brother's death in exchange for statement; that law enforcement officers' statements suggesting full confession would be viewed favorably by prosecutor were not coercive; and that officers' statements indicating that juries in county were more likely to be lenient if presented with full confession were not coercive. From the Supreme Court’s opinion:
Cox argues the district court committed reversible error by denying his motion to suppress his confession. Specifically, Cox alleges that (1) police promised that in exchange for his statement they would look into his brother's death; (2) police assured him they could influence the county attorney; and (3) police told him that a “small town Scott County jury” would be more lenient if presented with a full confession.
About 1 hour and 20 minutes into the interview, Cox raised the possibility of making a deal with the officers: if they promised to look into his brother's death, he would tell the officers what happened.
The transcript of the statement demonstrates that Cox's will was not overborne. Indeed, Cox initiated the negotiation that led to Agent Wold's agreement and Cox's inculpatory statement….
We next consider Cox's argument that the statements of Agent Wold and Detective Horner suggesting a full confession would be viewed favorably by a prosecutor were coercive. A suggestion by the police that they can influence prosecutors in favor of a defendant is improper….
Cox points to several statements investigators made during his interview before he confessed as evidence of coercion. For example, police officers stated:
• I wanna know that information so that we can go and tell our bosses that tonight Anthony was very truthful....
• It looks so much better that when the attorneys when they pull all of our reports together and they review your statement or review the recording of this interview tonight and they go wow here is a young man who at least said what he did he's sorry for what he did and he didn't mean it for it to go down that way and he was cooperative and filled in all of the other pieces all I can tell you Anthony is that people that do that (Inaudible) better I think everybody involved in the whole system just go wow....
We conclude that the police statements Cox challenges were not improper in the context in which they were given. The officers stated that a full confession would be impressive and that defendants who make a full confession generally do better in the criminal justice system. But the officers did not promise that if Cox confessed, they would attempt to obtain favorable treatment for him from the prosecutors. Consequently, the police statements in this case are significantly different than the statements we have deemed improper in the past.
Cox further argues his confession was rendered involuntary by the police officers' statements that Scott County juries have a “small town” outlook and are more likely to look favorably on a full confession. He suggests the officers “played on the societal fear of urban crime committed by young black men and how that [is] perceived in small towns.” These statements were all made to pressure Cox into implicating Kurr, which ultimately proved fruitless. We conclude that the police statements were not unduly coercive. The statement of how a jury may view certain evidence is simply a prediction.
In sum, we conclude that the totality of the circumstances do not support Cox's argument that his confession to police was involuntary.
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Questioning by law enforcement officers is less likely to rise to the level of a custodial interrogation when it occurs in a defendant's home
In State v. Martinez (August 2016) the Court of Appeals of Ohio, Eight District, upheld the lower court’s decision that when the defendant was questioned in his home by law enforcement, the advisement of the Miranda rights was not required. From the Court of Appeals opinion:
On the morning of November 7, 2014, Parma Police Detective David Sheridan and Parma Police Sergeant David Zarzeczny went to Martinez's home to question him regarding an incident that had allegedly occurred two days earlier at Parma High School. Detective Sheridan was investigating a complaint by a 15–year–old female student that Martinez, age 66, a hall monitor at Parma High School, had placed his arm around her shoulder and made several inappropriate sexual comments to her while escorting her to class. The student alleged that Martinez had asked when she would let “an old man like him have sex with [her]” and whether he could “lick her p* * * *.” Martinez was placed on administrative leave following the incident. Sergeant Zarzeczny, who worked part-time at the high school, completed the incident report.
Given his familiarity with Martinez and the fact that he had a “rapport” with him, Sergeant Zarzeczny thought Martinez would be more “comfortable” discussing the allegations if he were present and offered to accompany Detective Sheridan to question Martinez regarding the allegations…. Detective Sheridan accepted the offer and the two officers drove to Martinez's residence in an unmarked police car.
When the officers arrived at Martinez's residence, Martinez answered the door and invited them inside….. Once inside, Detective Sheridan introduced himself and asked Martinez whether he would prefer to talk at home or somewhere else. Martinez replied that they could talk there, offered the officers coffee and led them to the kitchen where the officers sat down at the kitchen table with Martinez and his wife, Diane Martinez (“Diane”).
Approximately 15 minutes into the interrogation, Martinez admitted to putting his arm around the student and making the alleged inappropriate sexual comments to her. At no point, either prior to or during the interrogation, did Detective Sheridan inform Martinez of his Miranda rights.
In his assignment of error, Martinez argues that the officers' failure to advise him of his Miranda rights prior to questioning rendered the confession he made to the officers during his at-home interrogation inadmissable. Martinez contends that the interrogation was “custodial” because he was “ambushed in his own home” by the two police officers, “intent on secretly recording him [and] persistently questioning him” until they secured a confession. He claims that Sergeant Zarzeczny's presence was designed to “lull” Martinez—who, by that time, was clearly a suspect—“into a false sense of security” and that his presence, combined with the secret recording of his interrogation, created a “police-dominated atmosphere” that deprived Martinez of his freedom in a significant way. We disagree. Although it may have been the better practice for the law enforcement officers to have informed Martinez of his Miranda rights prior to questioning him, we cannot say that their failure to do so rendered Martinez's statements inadmissible.
Miranda warnings are not required simply because someone is a suspect…. Likewise, Miranda warnings are not required simply because the questioning takes place in an allegedly coercive atmosphere... As the United States Supreme Court explained… “Any interview of one suspected of a crime by a police officer will have coercive aspects to it, simply by virtue of the fact that the police officer is part of a law enforcement system which may ultimately cause the suspect to be charged with a crime. But police officers are not required to administer Miranda warnings to everyone whom they question.”
In general, questioning by law enforcement officers is less likely to rise to the level of a custodial interrogation when it occurs in a defendant's home…. This is because “a person's home is a place ‘a reasonable person would have felt free to terminate the interview.’ In this case, following a careful review of the record and consideration of the totality of the circumstances surrounding the interrogation, we find that Martinez was not in custody during the interrogation at his home.
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The value of recording an interrogation to refute the defendant’s claims of threats and promises
In Thompson, Petitioner v. Bauman, Respondent (August 2016) the US District Court, E.D. Michigan upheld the lower court’s decision to admit the defendant’s confession which he claimed was obtained by threats to prosecute his wife and remove their children from her custody. The lower court relied on the recorded interrogation to refute the defendant’s claims. From the District Curt’s opinion:
According to defendant, [police officer] Shanlian made comments to the effect that he would contact the prosecutor about bringing charges against defendant's wife for obstruction of justice if defendant did not provide a statement. Defendant claimed that Shanlian also advised him that if defendant's wife were arrested, their children would be placed in foster care.
Conversely, Shanlian testified that he affirmatively advised defendant that he did not intend to arrest defendant's wife, although he acknowledged advising defendant that the prosecutor could independently decide to charge her with obstruction of justice. A transcript of recorded portions of defendant's interview corroborates this account. Shanlian's acknowledgment that any decision to charge defendant's wife rested with the prosecutor, and not with him, negates an inference that Shanlian was attempting to induce a confession by offering leniency for defendant's wife as a quid-pro-quo for defendant's confession, or by threatening to bring criminal charges against defendant's wife as a consequence of defendant's refusal to cooperate and give a statement.
It was the trial court's prerogative to assess the credibility of the witnesses. Considering the totality of the circumstances in accordance with Shanlian's version of events, which the trial court apparently found more credible, we conclude that defendant's confession was not involuntarily given. The trial court did not err in denying defendant's motion to suppress his confession.
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“How was your Halloween?” was the functional equivalent of interrogation
In State v. Kazanas (June 2016) the Supreme Court of Hawaii found that a police officer’s apparent effort to make small talk and calm the defendant down by asking him how his Halloween went constituted the functional equivalent of an interrogation. From the Supreme Court’s opinion:
In this appeal, we decide whether an arrestee not advised of his Miranda rights was “interrogated” in the constitutional sense. Briefly stated, Petitioner/Defendant–Appellant Gregory Kazanas (“Kazanas”) was charged with one count of Criminal Property Damage in the First Degree and one count of Unauthorized Entry into Motor Vehicle in the First Degree (“UEMV”). The charges stemmed from events alleged to have taken place on Halloween 2011. Kazanas was accused of breaking the back windshield of a car then reaching through the driver's side open window to punch the driver in the face. Kazanas was identified by the complaining witness and arrested. The Honolulu Police Department (“HPD”) police officer assigned to accompany Kazanas to Queen's Medical Center knew the reason for the arrest. In an apparent effort to make small talk and calm Kazanas down, she asked him how his Halloween went. During the conversation, Kazanas stated, “If people didn't upset me, I wouldn't have to punch them.” The statement was admitted at trial, and Kazanas was ultimately convicted of UEMV.
We hold that, although the officer testified that she did not intend her small talk to provoke an incriminating response, she “should have known that her words were reasonably likely to elicit an incriminating response from the person in custody.”… The questioning in this case was reasonably likely to elicit an incriminating response as the events of the night culminated in Kazanas's arrest for UEMV. The officer knew how Kazanas's Halloween went. Thus, her question was reasonably likely to elicit from Kazanas details about the alleged crime. In other words, the police officer subjected Kazanas, a person in custody pursuant to an arrest, to interrogation; accordingly, Kazanas was entitled to be advised of his Miranda rights before the small talk conversation began. As Kazanas's right against self-incrimination was violated, his statement should have been suppressed at trial.
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Court restricts the testimony of false confession expert Dr. Richard Leo
In Jimerson v. State (June 2016) the Court of Appeals of Indiana upheld the lower court’s decision to restrict the testimony of Dr. Richard Leo on false confession issues. From the Court of Appeals decision:
Timothy Jimerson (“Jimerson”) appeals his conviction for Voluntary Manslaughter, a Class A felony. He presents the sole issue of whether the trial court abused its discretion in restricting the testimony of an expert witness. We affirm.
At trial, Jimerson presented the testimony of Dr. Richard Leo (“Dr. Leo”), a law professor and expert in the field of false confessions…. In an offer of proof, Dr. Leo testified that he had noticed “risk factors” for false confessions present in Jimerson's statement… He agreed that it was “important for the jury to understand” that Jimerson had been told his DNA was all over Spicer's body… Dr. Leo also acknowledged that Jimerson had been assured that he was not “a monster” and had been given the opportunity to explain that “something bad” happened, and a scenario was suggested that it perhaps related to drugs and sex… Additionally, Dr. Leo opined that Jimerson's interrogation provided an example of “time pressure” and that being presented with a gruesome crime scene photo (as was done in this case) can “have a very powerful effect on some people.”…
On appeal, Jimerson contends that the trial court…. abused its discretion by excluding Dr. Leo's testimony addressing the particular circumstances surrounding Jimerson's confession. The decision to admit or exclude evidence is a matter within the sound discretion of the trial court. [The court’s opinion offers an extensive discussion of three cases and what other courts have decided regarding false confession expert testimony.]
Dr. Leo was required to testify at length about police interrogation tactics that can increase the risk of a false or coerced confession. The jury was also presented with extensive evidence regarding the police interrogations of Shelby in written, video, and audio formats, and could observe whether his interrogation included the tactics and techniques that Dr. Leo testified could lead to a false or coerced confession. Thus, the jury was able to apply the concepts about which Dr. Leo testified to the facts and circumstances of Shelby's interrogation and subsequent confession. This is all that Dr. Leo could have testified to under our reading of Miller and Callis…. Under these facts and circumstances, we conclude that the trial court's limitations of Dr. Leo's testimony did not amount to reversible error.
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Court finds that Loss Prevention investigator conducted a proper interview and interrogation
In Rando v. Leonard, Appelle, CVS Pharmacy, Inc., Defendant (June 2016) the US Court of Appeals, First Circuit rejected a former employee’s claim that the manager allegedly forced her to confess to stealing prescription pain medication from the pharmacy. From the Court of Appeals decision:
Since 2002, Leonard has served as a Regional Loss Prevention Manager at CVS Pharmacy, Inc. (“CVS”). As a Loss Prevention Manager, Leonard investigates “shrinkage,” the loss of inventory due to factors such as theft and vendor fraud.
Rando had served as a pharmacy technician at various CVS stores since 1994 and was then employed at the CVS in Concord. On April 21, 2012, an in-store surveillance camera captured Rando taking a bottle of butalbital off the shelf and placing it in her pocket. Rando took the bottle home that day. After watching the video, either store manager Steve Normandy or pharmacy manager Colleen Robillard told Leonard about the tape and informed her that a bottle of butalbital was missing. Leonard watched the tape as well.
Two days later, on April 23, Leonard interviewed Rando with another loss prevention manager, Alfie Binns. Early in the interview, Rando acknowledged having taken the single bottle of butalbital on April 21. Leonard then broached the issue of whether Rando had also stolen the hydrocodone and the other 138 (missing) bottles of butalbital. Rando felt coerced and pressured during the meeting and recalled that Leonard barraged her with questions. Leonard repeatedly placed a confession in front of Rando for her to sign, asked whether Rando knew that she was going to be terminated, yelled at Rando, and threatened to call the police. Rando also felt nervous as she did not know who Binns was or why he was there. Desperate to leave and exhausted by Leonard's constant questions, Rando finally signed the confession and a promissory note stating that she had stolen the 138 bottles of butalbital (but not any hydrocodone) and owed CVS $7,482.99. During her deposition, Rando stated that she “would have admitted to stealing the crown jewels to get out of that room.”
Once Rando signed the confession, Leonard called the police and they arrived soon after. Rando agreed to let them search her home. During the search, the police found the bottle of butalbital that Rando had stolen two days before, along with two empty bottles from a “long, long time ago.” Rando has not had a prescription for butalbital for more than ten years.
In May of 2013, Rando filed suit against Leonard and CVS in the United States District Court for the District of Massachusetts on the basis of diversity jurisdiction. Her amended complaint alleged counts of malicious prosecution, intentional infliction of emotional distress, negligent infliction of emotional distress, intentional interference with contractual relations, and abuse of process.
Although Rando's arguments regarding whether Leonard acted with actual malice are properly preserved, we find that Rando produces no evidence suggesting that Leonard acted with actual malice and without a legitimate corporate purpose… Rando asserts that Leonard knowingly elicited a false confession from Rando because Leonard “was looking for someone to pin the blame on” after failing to find the cause of the continued butalbital and hydrocodone losses. Rando's only evidence on this point is that Leonard spoke to her boss, Christopher Crossman, about the thefts before interviewing Rando. But the mere fact that Leonard discussed an assignment with her boss does not suggest that she was frustrated or looking for someone to blame, as Rando argues. Rando also asserts that Leonard accused Rando “without any evidence establishing that theft.” To the contrary, Leonard had reason to believe that Rando may have been the culprit: Rando worked at the Concord CVS when the thefts began, and she was caught on videotape stealing a bottle of butalbital. To be sure, Rando's theft of one bottle of butalbital does not necessarily mean she was responsible for the other thefts. Nevertheless, there is no indication that Leonard, by investigating Rando's potential involvement in the overarching growth problem, acted with spite or malice. Rando claims that Leonard lied to her, but the record evidence does not support this assertion. Nor does Rando produce any evidence that Leonard harbored any ill will toward Rando. Indeed, their prior interactions, which were limited to polite greetings, were uneventful. At worst, Rando's testimony suggests that Leonard aggressively questioned Rando, informed Rando that she faced termination, threatened to call the police, and yelled at her. We do not doubt that Rando felt frightened and upset by this encounter. Leonard's behavior, however, simply does not rise to the level of “actual malice.”
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“… the Court must express its strong concern that the search and interrogation methods used in this case barely fall within the borders of what is legally acceptable”
In US v. Bhatt (February 2016) the US District Court, N.D. Georgia, expressed concern about the investigators interrogation tactics, stating that they “barely fall within the borders of what is legally acceptable.” From the District Court’s opinion:
Twelve to thirteen agents armed in tactical gear arrived at Defendant Bhatt's doorstep at the crack of dawn, with some agents displaying their weapons, to conduct an investigatory search and related interrogations. Defendant and his family members were asleep when the law enforcement team arrived at their doorstep and began loudly knocking on the door… They clearly were implementing a “shock and awe” strategy to obtain the maximum information feasible in connection with an investigatory search.
The Defendant and his father were handcuffed at the onset of the search for ten to fifteen minutes while their wives stood by outside and the house was cleared…. Both Defendant and his father were solely wearing boxers, because they had just been woken from sleep. Within 27 minutes of the agents knocking on the door, they proceeded to interrogate Defendant and his father separately, without providing them an opportunity to clothe. The interview of Defendant took place on the house porch and lasted all told almost three hours, including two short breaks. The entire search and interrogation process lasted almost four hours. The agents never told Mr. Bhatt that he was free to leave the home and choose not to be interviewed. They never told him they could accompany him to his bedroom so he could properly clothe himself. The agents tag teamed Bhatt's interrogation by adding the lead investigator, Mr. Ashley, to the two-person interrogation team for the last segment of the interrogation that lasted approximately 50 minutes…. Further, he advised Bhatt that if he failed to cooperate, that Ashley would tell the U.S. Attorney of his lack of cooperation and that this would impact the decision to prosecute and how to handle the case.
The focus of the voluntariness inquiry is on whether the defendant was coerced by the government into making the statement: “The relinquishment of the right must have been voluntary in the sense that it was the product of a free and deliberate choice rather than intimidation, coercion or deception.”
Among the factors the Court should consider are the defendant's intelligence, the length of his detention, the nature of the interrogation, the use of any physical force against him, or the use of any promises or inducements by police…
When the Court evaluates these factors, including Defendant's professional background, his age and the circumstances of the search and interrogation, it ultimately reaches the same conclusion made by the Magistrate Judge. However, the Court remains more concerned about the collective impact of the variety of tactics used in this case to place coercive psychological pressure on Bhatt. These include: (1) the “shock and awe” intrusive dawn wake-up arrival delivered by a troop of twelve to thirteen armed law enforcement officers; (2) the lead agents' (who included a female agent) obvious intentional undermining of Defendant's sense of independence and orientation, by virtue of their proceeding to interview Bhatt for hours on end after while in his boxers, just after he had been abruptly woken by their team; (3) the agents' failure to make clear that Defendant was free to leave and not submit to an interview; (4) Agent Ashley's extended and somewhat strained representations regarding the benefits of cooperation and the risks of prosecution as well as his capacity to assist Defendant in communicating with the judge on the case via a letter; and (5) the length of the interrogation that was conducted for hours immediately following the Defendant's being woken and placed in handcuffs initially.
While the Court finds Agent Ashley went overboard in his statements, he did not deliver these in a coercive manner. Nor was Bhatt's interview as a whole conducted in an overtly threatening manner by the agents. The Court therefore concurs with the Magistrate Judge's finding that the Defendant's statement here was given on a voluntary basis in view of applicable law, but it views the agents' conduct of the interview as part of a pattern of pushing the limits. The Court remains deeply disturbed by the coercive power dynamics created by the officers' lengthy interview of the Defendant while he vulnerably stood in his boxers for hours after the shock of being woken by a large team of armed officers. These tactics, tolerated in Peck but expanded still further here, will not likely be approved by this judge if stretched any further.
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Court rejects defendant’s claim that he confessed because his family members were threatened with arrest
In Ortega v. Sherman (March 2016) the US District Court, C.D. California upheld the lower courts rejection of the defendant’s claims that he confessed due to police “threats, promises of leniency, and deception.” From the District Court’s opinion:
Los Angeles County Superior Court jury found Petitioner guilty of first degree special circumstances murder. The jury also found that Petitioner personally discharged a firearm. Thereafter, Petitioner was sentenced to life without the possibility of parole, plus a consecutive 25-year-to-life term for the firearm enhancement.
… Petitioner maintains that the investigating detectives employed three impermissibly coercive tactics that caused him to incriminate himself: threats, promises of leniency, and deception. First, Petitioner contends that the detectives used threats against his family to persuade him to provide incriminating statements about the shooting. In particular, he complains that the detectives effectively told Petitioner that his brother would face murder charges unless Petitioner admitted that he fired two shots at the victim. Petitioner also complains that the detectives threatened to arrest his mother unless he was forthcoming about the shooting and his motives for targeting the victim.
Second, Petitioner maintains that the detectives effectively promised him leniency if he was forthcoming about the shooting. In particular, Petitioner notes that the detectives stated that Petitioner would appear to be a cold-blooded killer unless he explained why he had shot the victim. According to Petitioner, this statement amounted to a promise that he could avoid being charged with premeditated murder if he explained his motivation for targeting the victim. Simultaneously, Petitioner construes the statement as a threat that he would, in fact, be charged with premeditated murder if he did not explain why he had targeted and shot the victim.
Finally, Petitioner alleges that the detectives coerced him to confess by falsely stating that they knew Petitioner's father and, thereafter, using Petitioner's patently obvious feelings towards his father in order to persuade Petitioner to admit why he had shot the victim. This tactic was impermissibly coercive, according to Petitioner, because he was uniquely vulnerable to it, and the detectives used his vulnerability in an effort to gain his confidence. Petitioner notes that the tactic was highly successful, as the record shows that he cited the purported fact that one of the detectives knew his father as the reason why he ultimately elected to be truthful about the shooting.
The California Court of Appeal rejected Petitioner's coercion claim. In doing so, the court of appeal applied the proper legal standard for analyzing federal law challenges to purportedly coerced confessions.
Here, the court of appeal reasonably concluded that Petitioner's custodial statements were voluntary. Each of Petitioner's allegations of coercion is addressed in turn below.
1. Threats to Family Members
Threats involving an accused's family members can render a resulting confession involuntary…..
Nevertheless, there is no clearly established federal law for the proposition that threats or promises relating to one's family warrant special attention…. Rather, on habeas review, such threats “may be considered as part of the totality of the circumstances” in determining whether the suspect's will was overborne.
Here, the detectives' purported threats to arrest Petitioner's brother and mother did not render any aspect of Petitioner's confession coerced. Like the police in Hufstetler, who had reason to believe that the defendant's girlfriend participated in the robbery, the detectives here had good reason to believe that Petitioner's brother was involved in the murder. Indeed, the detectives laid out the evidence that they had amassed against Petitioner and his brother. Moreover, Petitioner's account of the shooting – that he fired only one shot – left only the possibility that his brother fired the second shot. As such, the detectives could not have committed any misconduct by accurately noting the predicament of Petitioner's brother.
2. Promises of Leniency
Inducements generally serve to invalidate a confession…. Not all promises by police, however, impact the voluntariness of a resulting confession. Rather, the “promise must be sufficiently compelling to overbear the suspect's will in light of all attendant circumstances.”… Thus, in Guerrero, the Ninth Circuit held that an officer's promise both to inform the prosecutor about a suspect's cooperation and to recommend leniency was insufficient to render the suspect's resulting confession involuntary.
Here, a review of the record shows that the detectives made no promises of leniency to Petitioner. Although the detectives repeatedly referred to Petitioner as a cold-blooded killer, those references were not made in the context of a promise for leniency. Rather, they were made in an effort to persuade Petitioner to explain his motive for shooting the victim, rather than insisting that he had no reason for doing so. In particular, the detective indicated that, if Petitioner's explanation were accepted – that is, if there were no motive for the shooting – then Petitioner was essentially claiming to be a cold-blooded killer. Construing that statement as a promise of leniency strains credulity. Regardless, no reasonable person would interpret the detective's statements, when considered in the context that they were made, either as promises of leniency or threats of enhanced charges. Thus, they do not amount to coercion.
3. Deceiving Petitioner about Knowing His Father
Police deception alone will not render a confession involuntary…. Thus, police generally can lie to a suspect about, for example, the extent of the evidence against the suspect or feign friendship with the suspect without fear of rendering the resulting confession involuntary.
Here, the detectives' references to Petitioner's father are no exception to this general rule. At most, the detectives misled Petitioner as to whether they knew Petitioner's father and whether they believed that his father was an honest man. Although these statements were false, they constitute the type of trickery that courts have repeatedly found to be permissible. Moreover, Petitioner has alleged no facts that would support a conclusion that his will was overborne simply by the fact that the detectives knew his father or that they believed his father to be an honest man. Regardless, the detectives invoked Petitioner's father in an effort to appeal to Petitioner's sense of honesty; consequently, there is no reason to believe that the references to Petitioner's father resulted in, or were likely to result in, a false confession.
In short, the detectives made no statements that rendered Petitioner's confession involuntary. Consequently, the court of appeal's rejection of Petitioner's challenge to the admissibility of his pre-trial statements was neither an unreasonable application of, nor contrary to, clearly established federal law as determined by the Supreme Court. Petitioner, therefore, is not entitled to habeas relief with respect to this claim.
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“I think I need a lawyer, I don't know, but I want to cooperate and talk” was not an unequivocal request for a lawyer
In US v. Thousand (June 2016) the US District Court, W.D. Wisconsin found that the defendant’s statement, “I think I need a lawyer, I don't know, but I want to cooperate and talk” was not an unequivocal request for an attorney. From the District Court’s opinion:
A statement is sufficient to invoke the right to counsel if it indicates “a certain and present desire to consult with counsel.”… The Seventh Circuit looks for the use of definite words like “can,” which reflect a suspect's inquiry into their present ability to be able to obtain counsel, rather than “should” or “might,” which suggest indecision about whether the defendant wants a lawyer.
In addition to the specific language used by the suspect, the prior context of her interaction with the police may be relevant in determining whether she unambiguously invoked her right to counsel...
In the present case, defendant stated: “I think I need a lawyer, I don't know, but I want to cooperate and talk.” This statement does not reflect a certain and present desire to consult with counsel. Courts have found that use of the word “think” in this context fails to convey the certainty required by Davis….
Moreover, to the extent that the first clause of defendant's statement (“I think I need a lawyer”) suggested a desire for counsel, the second clause (“I don't know”) conveyed “indecision,” … and the third clause (“but I want to cooperate and talk”) a “hedge.”…. Defendant cites no case finding a similar statement to constitute an unequivocal request for counsel.
Finally, while clarification wasn't required, it is worth noting that… after defendant made the equivocal statement the agents took a short break, then re-advised defendant of her rights; she again waived her rights and continued answering questions. For these reasons and those stated by the magistrate judge, I find that defendant did not invoke her right to counsel.
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Court rules confession voluntary even though defendant was told that if the baby’s death was the result of a 100% accident he would probably go free
In Hayes v. Plumley (September 2016) the US District Court, S.D. West Virginia upheld the admission of the defendant’s incriminating statement that he caused the death of an eighteen-month-old child and rejected his claim that the confession was the result of coercion. From the District Court’s opinion:
Petitioner claims that his limited admission to his role in R.M.'s death was coerced by law enforcement. Detectives coaxed the statement at issue from him during a two and one-half hour interview held on October 4, 2010, the day following R.M.'s death. The interview took place in the kitchen of the South Charleston Police Station, where Petitioner agreed to be interviewed, acknowledged his understanding that he was not under arrest and free to leave at any time, and executed a waiver of his Miranda rights.
Given their view of the evidence, the detectives presented Petitioner's predicament in terms of two options: he could either continue to feign ignorance and, from his silence, be treated as a remorseless killer, or otherwise confess to an accident resulting from a brief fit of rage or lapse in judgment and receive mercy. As the interview proceeded, Petitioner became obviously intrigued by the idea that confession to an accidental injury could result in a less severe sentence. He asked the detectives if he would be “put away” if R.M.'s injuries were accidentally inflicted. It is the detectives' subsequent attempts to distinguish between an accidental, as opposed to a deliberately inflicted, injury which Petitioner claims amounted to coercion. He finds the following two portions of dialogue particularly objectionable:
Q: ... If it's an accident, we would deal with it. Accidents happen all the time.
A: And you'd still put me in jail.
Q: That's not true. If an accident happened, an accident happened. Accidents happen all the time. I investigate lots of accidents.
A: And do those people still do time?
Q. No. There's a difference between an accident and something with malice…. Later on, Petitioner again pressed the detectives to tell him the “best case scenario” if he admitted knowledge of the circumstances surrounding R.M.'s death:
A: I'm saying what is a judge going to do to me?
Q: I ... I will tell you if we go in there and you tell him that this baby was a hundred percent fine ... when you put her in the car seat[,] [a]nd you showed up ten minutes later with this much damage ... they're gonna' say you' re just a fat liar and ...
Q: I'm saying that it's an accident.
A: ... If it's a hundred percent an accident, it'll be a completely different story.
Q: That's what I want to know.
A: If it was a hundred percent an accident, you would probably be free to leave once it's dealt with. You might get charged with lying to us at the beginning of this because you ... you had no ... you shouldn't have done that.
Reviewing this transcript, the magistrate judge concluded that while the interviewing detectives “certainly emphasized the positive aspects of Hayes providing a statement describing R.M.'s death as accidental ... the detectives never unambiguously promised that Hayes would receive a lesser sentence or would not be criminally charged for R.M.'s death.”
A detective's truthful statements about a suspect's predicament “are not the type of ‘coercion’ that threatens to render a statement involuntary.”…. The detectives arrived at the interview armed with evidence clearly pointing to Petitioner's culpability. Met with his incredible claim of ignorance, the detectives did not coerce his admission to an accidental event by merely pointing out the harsher reception he would face if he continued to deny the obvious. As the Supreme Court has recognized, “very few people give incriminating statements in the absence of official action of some kind.” …. Moreover, drawing Petitioner's attention to the potential legal consequences of his actions was not patently coercive. “[T]elling the defendant in a noncoercive manner of the realistically expected penalties and encouraging him to tell the truth is no more than affording him the chance to make an informed decision with respect to his cooperation with the government.”
Furthermore, the Court simply does not accept Petitioner's assertion that he believed the detectives to be promising immediate release in exchange for an inculpatory statement. The detectives told Petitioner that regardless of the content of any confession, he would be processed, presented before a magistrate, and then left to “work it out with the prosecutor.” They acknowledged that his admission to any involvement in the child's death might result in him being “put away,” but that the “putting away part [would] be a lot worse for somebody who shows no remorse.”… Petitioner's own statements during the interview prove that he was acutely aware of the risks before him and belie his current assertion that he inculpated himself with the belief that he would not be criminally charged. Immediately following their discussion of the difference between accidental and malicious acts, Petitioner remarked, “[y]ou're going to take me and process me any way it goes.” … The detective agreed, admitting that Petitioner's imminent arrest was “[m]ore than likely.” … Again, Petitioner acknowledged his understanding, stating, “[w]hen I leave here today, it's going to be in handcuffs.” … He even asked before offering the critical statement which one of the detectives would take him “downtown” for booking.
Furthermore, even if the detectives' statements highlighting the benefits of confessing to an accidental incident constituted implied promises of leniency, the surrounding circumstances do not indicate that Petitioner's “will [was] overborne or his capacity for self-determination critically impaired.” … Petitioner maintained an awareness throughout the interview that the evidence inexorably pointed to him as the one who caused R.M.'s injuries and appeared to be weighing the benefits of implicating himself in an accidental, as opposed to a purposeful, event. And for the detectives' best efforts, Petitioner never offered an account of the alleged accident that comported with the medical evidence….
In light of the countervailing contextual factors, the Court does not believe that the detectives' suggestion that Petitioner would not serve prison time if R.M.'s injuries were purely accidental overcame his capacity for self-determination. Therefore, the Court FINDS that Petitioner has not met his burden to demonstrate that his limited—and subsequently discredited—admission to injuring R.M. was involuntary.
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Police statements that the defendant’s nephew would be released if the defendant “did the right thing” [confessed] and that the police “should have brought your sister down too” were not coercive
In Commonwealth v. Winstead (September 2015) the Circuit Court of Virginia, Fourth Judicial Circuit, found that statements suggesting the release of the defendant’s nephew if he “did the right thing” and confessed, as well as a statement that the police “should have brought your sister down” to the police station were not coercive. From the court’s opinion:
Defendant argues that his written confession must be excluded because he did not give it freely and voluntarily. Specifically, Defendant asserts that the interrogating officers coerced Defendant into signing the confession by (1) forcing Defendant to observe his nephew confined in a holding cell, (2) implying that they would release the nephew if Defendant confessed, and (3) commenting about Defendant's sister that they “should have brought her in” to the station. Defendant claims that, as a result of this conduct, his will was overborne and he felt coerced into signing the confession.
Virginia law recognizes that “a confession may be involuntary and hence inadmissible when induced by threats to prosecute members of the confessor's family.”… However, “a confession is not per se invalid merely because the confessor implicates himself in an effort to secure the best possible disposition of a charge pending against a relative or friend ... it must also be shown that the ... relative was improperly detained or threatened as the means whereby the confession was involuntarily extracted.” … As with other arguments as to voluntariness, the inquiry is “whether the defendant's will was overborne at the time he confessed.” … If the defendant's “will was overborne,” his or her resulting confession is inadmissible.
In the case at bar, Defendant claims that officers coerced him into confessing by (1) detaining his nephew Jerrell, (2) having Defendant observe Jerrell confined in a holding cell, (3) telling Defendant “if you do the right thing, Jerrell will get to go home,” (4) stating to Defendant “you'd be surprised how many people let their family members get arrested,” and (5) remarking that the police “should've brought your sister down, too.” Defendant argues that these statements constitute implied threats to prosecute Defendant's family members if he did not confess, thereby rendering his subsequent written confession involuntary.
Because both Hammer and Hill involved threats made by officers to investigate or prosecute an arrestee's family member, these decisions govern the Court's analysis. These cases stand for the general proposition that a confession is not rendered involuntary by an officer's statement implying that the police would investigate or prosecute a member of the defendant's family if that threat could be lawfully carried out and is not accompanied by baseless threats or other deprivations that could overcome the defendant's will.
On balance, in view of the circumstances of Defendant's detention and questioning, Defendant's individual characteristics, and the fact that the police could have carried out their alleged threats, the Court holds that Defendant's confession was not involuntary.
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Court upholds incriminating statements made during a police interview while defendant was incarcerated for an unrelated crime even though no Miranda warnings were issued
In State v. Nelson (September 2016) the Court of Appeals of Ohio, Sixth District, found that an interview of the defendant in the jail facility were he was incarcerated for a different crime did not require an advisement of Miranda rights. From the court’s opinion:
While in prison on the aggravated robbery charge, appellant was caught with a knife on his person. As a result, appellant was charged with possession of a deadly weapon under detention, a second degree felony. In an effort to reduce the potential time he was facing on this charge or to reduce the time he was currently serving for his aggravated robbery conviction, appellant informed state troopers that he had information concerning the murder of Markiese Chandler and was willing to testify against Jimmy Henry and Byron Mitchell, the alleged perpetrators, in exchange for a deal.
In an effort to ascertain the usefulness of appellant's information, Toledo police detectives Elizabeth Kantura, Robert Schroeder, and Deb Hahn traveled to the prison to meet with appellant on August 6, 2012. According to Kantura, the meeting took place in a small administrative room inside the prison. Appellant was handcuffed during the interview, which lasted less than 30 minutes.
At the interview, appellant informed authorities that he was present at the scene of the murder. He went on to explain that he drove to the scene with Henry and Mitchell, parked the car, and approached the three victims who were walking along the side of the street. Appellant insisted that Henry was the first to fire shots. Appellant also admitted to firing shots, but stated that he was not aiming toward the victims and therefore was not the one responsible for the gunshot injuries. When pressed for further details, appellant was able to describe what he and the others were wearing, the type of vehicle they were driving, how they chased down one of the victims, and how they fled the scene. Up to this point, Kantura had not informed appellant of his Miranda rights. Kantura reasoned that she was not required to provide Miranda warnings because appellant voluntarily asked her to speak with him and she was skeptical as to the utility of the information appellant would provide. Further, Kantura stated that her purpose for interviewing appellant was merely to get his statement as a witness to the murder.
Here, appellant argues that his statements should be suppressed because they were the product of a custodial interrogation that took place without a waiver of his Miranda rights.
The determination of whether police questioning of a prison inmate amounts to custodial interrogation was addressed by the United States Supreme Court in Howes v. Fields, ––– U.S. ––––, 132 S.Ct. 1181, 182 L.Ed.2d 17 (2012). In Howes, the defendant was escorted from his prison cell by a corrections officer to a conference room where he was questioned by two sheriff's deputies about criminal activity that he had allegedly engaged in before he entered prison. At no time during the questioning was the defendant given Miranda warnings or advised that he did not have to speak with the deputies. However, defendant was told more than once that he was free to leave the interview and return to his cell. The questioning lasted between five and seven hours, during which time the defendant was free of restraints and the door to the conference room was occasionally open. While the defendant stated that he no longer wished to speak to the deputies several times during the interview, he never stated that he wished to return to his cell. According to the defendant, one of the deputies used a “very sharp tone” during the interview. At some point during the interview, the defendant confessed and the interview concluded. The defendant was escorted back to his cell 20 minutes later, after his normal bedtime.
In examining whether the defendant was in custody and entitled to be apprised of his Miranda rights prior to questioning, the court stated: “ ‘custody’ is a term of art that specifies circumstances that are thought generally to present a serious danger of coercion.” … “In determining whether a person is in custody in this sense, the initial step is to ascertain whether, in light of the objective circumstances of the interrogation, a reasonable person [would] have felt he or she was not at liberty to terminate the interrogation and leave.” … In evaluating whether an inmate would have felt free to leave, a court must consider the totality of the circumstances. In so doing, the court should be mindful of the following relevant factors: (1) the location of the questioning, (2) its duration, (3) statements made during the interview, (4) the presence or absence of physical restraints during the questioning, and (5) the release of the interviewee at the end of the questioning. Freedom of movement, standing alone, is not a determinative factor. Indeed, the Howes court cautioned courts to consider “whether the relevant environment presents the same inherently coercive pressures as the type of station house questioning at issue in Miranda.”
After articulating the foregoing principles, the court in Howes found that “imprisonment alone is not enough to create a custodial situation within the meaning of Miranda.” … In so finding, the court reasoned that interrogation of a prison inmate is different from the type of interrogation that was at issue in Miranda for at least three reasons: (1) “questioning a person who is already serving a prison term does not generally involve the shock that very often accompanies arrest,” (2) “a prisoner, unlike a person who has not been sentenced to a term of incarceration, is unlikely to be lured into speaking by a longing for prompt release,” and (3) “a prisoner, unlike a person who has not been convicted and sentenced, knows that the law enforcement officers who question him probably lack the authority to affect the duration of his sentence.”
In summarizing the test to be applied in cases in which a prison is questioned, the court stated that “the determination of custody should focus on all of the features of the interrogation includ[ing] the language that is used in summoning the prisoner to the interview and the manner in which the interrogation is conducted.”
…. we find that appellant was not in custody for purposes of Miranda in this case. Notably, appellant in this case actually invited Kantura to the prison to speak with him regarding his involvement in this case. He was transferred to an administrative room within the prison, where the initial questioning lasted less than 30 minutes. While it is true that appellant was handcuffed during the interview, this fact would not have alarmed appellant, who was accustomed to life as a prison inmate and the restraints that are routinely employed within prisons…. Moreover, there is no evidence that appellant attempted to stop the interview or resist questioning at any point during the process. Rather, appellant freely volunteered the information he provided to Kantura with the hope that providing such information would allow him to receive a reduction in his prison sentence.
In that regard, we agree with the trial court's statement that “there are no facts or even argument to indicate any coercion by police.” Thus, we conclude that appellant was not in custody within the meaning of Miranda, and was therefore not entitled to Miranda warnings prior to police questioning.
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Court excludes testimony from false confession expert Dr. Brian Cutler
In US v. Thomas (October 2016) the US District Court, E.D. New York, denied the defendant’s intent to call an expert witness on the issue of false confessions. From the court’s opinion:
Defendant seeks to call Dr. Brian Cutler as an expert witness “in the field of interrogation and false confessions.” According to Defendant's notice of intent to call an expert witness, Dr. Cutler would testify on: (1) “specific interrogation techniques and the relation of those techniques to false statements made by those interrogated” and (2) “the guilt-presumptive nature of the interrogation and the use of persuasion and coercion to attempt to obtain an admission of guilt.”
The decision to admit or to exclude expert testimony falls squarely within the discretion of the trial court…. Under Federal Rule of Evidence 702, the Court must determine whether the proposed expert witness is qualified based on the following factors:
(a) the expert's scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue;
(b) the testimony is based on sufficient facts or data;
(c) the testimony is the product of reliable principles and methods; and
(d) the expert has reliably applied the principles and methods to the facts of the case.
Here, the Court finds Dr. Cutler's proposed testimony is within the common knowledge of the trier of fact. An expert must demonstrate “knowledge, skill, experience, training, or education” that will help the factfinder… Expert witnesses are unnecessary when the factfinder is “as capable of comprehending the primary facts and of drawing correct conclusions from them as are witnesses possessed of special or peculiar training.” … Dr. Cutler's proposed testimony about the relationship between interrogation techniques and false statements and the guilt-presumptive nature of the interrogation is within the common knowledge of the factfinder. The jury is competent to take into consideration the effects of interrogation without the aid of an expert.
In addition, the Court finds Dr. Cutler's proposed testimony would supplant his opinion for that of the factfinder. If Dr. Cutler were permitted to testify about the relationship between interrogation techniques and false statements and the guilt-presumptive nature of the interrogation, he would substitute his opinion as to the credibility and testimony of the witnesses in place of the jury's. As such, Dr. Cutler's testimony is inappropriate expert testimony because it would usurp the jury's role.
The exclusion of Dr. Cutler's testimony does not leave Defendant without protection. Cross-examination of witnesses is sufficient to achieve the same effect as the proposed testimony of Dr. Cutler.
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Court reject’s defendant’s claim that his confession was coerced as the result of a threat to him and his family by a co-defendant
In Burkett v. Superintendent (April 2016) the US District Court, S.D. New York, ruled that the defendant’s confession, which he claimed was the result of his co-defendant telling him that he ““better take the rap or he [was] going to have people get to [Petitioner] when [Petitioner got] to the jail.” was not coerced. From the court’s opinion:
Petitioner took the stand and testified that Mr. Gurley had threatened him while the two were handcuffed alone in the booking area at the Peekskill Police Headquarters… According to Petitioner, Mr. Gurley told him that he “better take the rap or he [was] going to have people get to [Petitioner] when [Petitioner got] to the jail.” Petitioner stated that Mr. Gurley was a member of the Bloods gang, and that he interpreted Mr. Gurley's statement as a “threat” that members of the Bloods would attack him in jail if he did not confess to the crime… Petitioner had previously been jumped by members of the Bloods while in jail… Petitioner testified that he thereafter confessed to the crime because he wanted to clear Mr. Gurley's name and prevent any harm to himself.
The Second Department adjudicated Petitioner's federal claim on the merits, stating that:
A confession is “involuntarily made” when it is obtained by a public servant engaged in law enforcement activity by means of any promise or statement of fact which creates a substantial risk that the defendant might falsely incriminate himself”…. Here, at the suppression hearing, the People met their burden of proving beyond a reasonable doubt that the defendant's confession was made voluntarily, and the defendant presented no evidence that the police were involved in the alleged threat made by his accomplice.
It is “clearly established federal law” that “coercive police activity is a necessary predicate to the finding that a confession is not ‘voluntary’ within the meaning of the Due Process Clause of the Fourteenth Amendment.” … In Connelly, the state court suppressed a defendant's confession as “involuntary” on the basis of a psychiatrist's testimony that the defendant was hearing voices and that his “psychosis motivated his confession.” Supreme Court overturned the state court's decision, stating that “[a]bsent police conduct causally related to the confession, there is simply no basis for concluding that any state actor has deprived a criminal defendant of due process of law.”... Emphasizing the “state actor” requirement, the Supreme Court stated that even “[t]he most outrageous behavior by a private party seeking to secure evidence against a defendant does not make that evidence inadmissible under the Due Process Clause.”
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