Deweaver v. Runnels

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

EMILE DEWEAVER, 
Petitioner-Appellant, No. 06-16865
v.
 D.C. No.
CV-03-00839-MJJ
DAVID L. RUNNELS, Warden, High
Desert State Prison, OPINION
Respondent-Appellee.

Appeal from the United States District Court
for the Northern District of California
Martin J. Jenkins, District Judge, Presiding

Argued and Submitted
November 21, 2008—San Francisco, California

Filed February 25, 2009

Before: Procter Hug, Jr., John T. Noonan and
Sandra S. Ikuta, Circuit Judges.

Opinion by Judge Hug

2197
2200 DEWEAVER v. RUNNELS

COUNSEL

Mary E. Pougiales, Novato, California, for the petitioner-
appellant.

Juliet B. Haley, Deputy Attorney General, San Francisco, Cal-
ifornia, for the respondent-appellee.

OPINION

HUG, Circuit Judge:

Emile DeWeaver petitions for habeas relief arguing that the
California Court of Appeal erroneously concluded that he did
not invoke his right to remain silent during interrogation, his
confession was voluntary, and the state trial court’s interac-
tions with the jury did not coerce a verdict. For DeWeaver to
succeed, he must overcome the high standard of deference to
a state-court decision mandated by the Antiterrorism and
Effective Death Penalty Act (AEDPA), under which a state-
court decision may not be reversed unless it is contrary to or
an unreasonable application of clearly established Supreme
Court precedent, or if it was based on an unreasonable factual
determination. 28 U.S.C. § 2254(d). DeWeaver cannot over-
come this hurdle, and we therefore affirm the district court’s
denial of DeWeaver’s petition.
 DEWEAVER v. RUNNELS 2201
I. Standard of review

We review the federal district court’s decision to deny
DeWeaver’s habeas petition de novo. See Lopez v. Thompson,
202 F.3d 1110, 1116 (9th Cir. 2000) (en banc). “When
reviewing a state court’s analysis under AEDPA, this court
looks to the last reasoned decision’ as the basis for its judg-
ment.” Forn v. Hornung, 343 F.3d 990, 995 (9th Cir. 2003)
(quoting Avila v. Galaza, 297 F.3d 911, 918 (9th Cir. 2002)).
In this case, because the California Supreme Court denied
DeWeaver’s appeal without citation or comment, we look to
the California Court of Appeal’s decision as the basis for the
state’s judgment. See Taylor v. Maddox, 366 F.3d 992, 999
n.5 (9th Cir. 2004). Insofar as the state appellate court
adopted the reasoning of the state trial court, we also consider
the trial-court decision. See id.

An application for writ of habeas corpus shall not be
granted unless the state court’s judgment “(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). A state-court deci-
sion contravenes clearly established Supreme Court precedent
if it reaches a legal conclusion opposite the Supreme Court’s
or concludes differently on an indistinguishable set of facts.
Williams v. Taylor, 529 U.S. 362, 405-06 (2000). The state
court need not have cited Supreme Court precedent or been
aware of it, “so long as neither the reasoning nor the result of
the state-court decision contradicts [it].” Early v. Packer, 537
U.S. 3, 8 (2002). The state court unreasonably applies clearly
established federal law if it “either 1) correctly identifies the
governing rule but then applies it to a new set of facts in a
way that is objectively unreasonable, or 2) extends or fails to
extend a clearly established legal principle to a new context
in a way that is objectively unreasonable.” Hernandez v.
2202 DEWEAVER v. RUNNELS
Small, 282 F.3d 1132, 1142 (9th Cir. 2002); see also Wil-
liams, 529 U.S. at 408-09. We must defer to the state court’s
factual findings unless a defect in the process is so apparent
that “any appellate court . . . would be unreasonable in hold-
ing that the state court’s fact-finding process was adequate.”
Taylor, 166 F.3d at 1000.

II. DeWeaver’s confession

DeWeaver argues that the state appellate court decided con-
trary to federal law when it concluded that he had not invoked
his right to remain silent. He contends that by asking to go
back to his jail cell, he invoked his privilege against self
incrimination. At that point, DeWeaver argues, under
Miranda v. Arizona, 384 U.S. 436 (1966), police were
required to cease the interrogation and return him to the jail.
He then argues that even if there was no violation of Miranda,
his confession was involuntary because of the coercive tech-
niques used by the police interrogators. We first address
DeWeaver’s argument that the police officers violated the rule
in Miranda, and then his argument regarding the voluntari-
ness of his statement.

A. Factual and procedural background

DeWeaver and another man were charged with first-degree
murder, and DeWeaver was charged with attempted first-
degree murder for two shootings in Oakland, California. Two
days after the shootings, police encountered DeWeaver smok-
ing marijuana in a parked car. In the car, officers discovered
narcotics and two loaded handguns; they arrested DeWeaver
for possession of the drugs and firearms and informed him of
his rights under Miranda. DeWeaver told the officers that he
did not wish to give a statement and he was not questioned at
that time.

Over the course of two or three days, testing revealed that
the bullets recovered from the shootings in Oakland had been
 DEWEAVER v. RUNNELS 2203
fired by the guns found with DeWeaver in the car, and wit-
nesses to the shootings identified DeWeaver as a shooter in
photographic line-ups. Homicide Sergeant Ersie Joyner trans-
ported DeWeaver from the jail to the police department to
question him about the shootings. Sergeant Joyner and
DeWeaver both testified that on the morning of the interroga-
tion, DeWeaver was picked up by a police officer at North
County jail and driven to the police station where he was
placed in an interrogation room. Police officers asked
DeWeaver if he would like something to eat, brought him
some food, and left him alone in the interrogation room for an
hour before beginning the interview. At this point, the two
accounts diverge.

DeWeaver testified that as soon as the officers entered the
interrogation room, he asked them if they were Alcohol
Tobacco and Firearms agents. When they said no, they were
homicide detectives, DeWeaver remembered immediately
replying, “I don’t want to talk to you.” When the detectives
asked him why, DeWeaver testified that he told them: “I don’t
want to talk to you, you’re homicide detectives, you investi-
gate homicides.” He could not remember what Joyner said in
response, but testified that he then asked them to “take [him]
back to North County.” According to DeWeaver, Joyner
“asked me to hear him out, and after I finish hearing him out,
if I still want to go back to North County he’d take me.”

DeWeaver’s account continued with Joyner telling him that
the guns with which he had been arrested were linked to the
shootings, numerous witnesses had identified him as the
shooter, and the person who drove him to the scene of the
shooting had confessed. At that point, DeWeaver said he felt
confused and scared; he did not know what to do or what to
think. But he asked to see the photographic line-ups from
which the witnesses had identified him. He testified that he
looked at them and then said, “Okay, I heard you out and I
want to go back to North County now.”
2204 DEWEAVER v. RUNNELS
Although he was unclear of the timing, he testified that he
repeatedly asked to make a phone call, to go back to jail, and
told the interrogators that he did not want to talk to them.
Overall, DeWeaver attempted to paint a picture of a coercive
interrogation, even going so far as to testify, “by the time I
made that statement, I no longer had the decision making
skills to refuse to do it because it was like, I guess I feel like
my will was overborne.” He said that he was overwhelmed
with fear for his girlfriend, their unborn child, his father, and
his brother because one of the victim’s family members might
retaliate. DeWeaver alleged that Joyner told him if he made
a statement the police could protect his family. DeWeaver
also claimed that Joyner told him that if he did not make a
statement he would look like a cold-blooded killer, but that if
he did the judge might be lenient.

In contrast, Joyner described a non-remarkable police inter-
rogation. Joyner testified that he and his partner came into the
interview room, talked to DeWeaver about his name, birth
date, and living arrangements. Joyner then admonished
DeWeaver of his Miranda rights by reading to him from the
standardized form prepared by the Oakland Police Depart-
ment. DeWeaver waived his rights by initialing the form next
to the waiver statements and wrote the time of the waiver next
to his initials.

According to Joyner, DeWeaver never said that he did not
want to talk to the officers, but he did ask to go back to jail.
At the preliminary hearing, Joyner testified that, when they
started discussing the shootings in more detail, DeWeaver
appeared upset that he would be spending his fifth birthday in
a row in jail and asked to be returned to jail. At the Miranda
hearing, Joyner was less clear about the timing of the request,
but said that DeWeaver appeared reluctant to confront the evi-
dence against him. In response, Joyner conveyed that return-
ing to jail was not going to make the situation go away. He
asked DeWeaver to hear him out and told him if he still
wanted to return to jail, Joyner would take him.
 DEWEAVER v. RUNNELS 2205
Like DeWeaver, Joyner testified that he told DeWeaver
that the guns with which he been arrested fired the bullets
from the shootings, a witness had identified him as the
shooter, and the person who had been driving DeWeaver the
day of the shooting was at the station being questioned at the
same time. But, according to Joyner, he never threatened
DeWeaver or discussed possible sentences. He never prom-
ised DeWeaver leniency if he cooperated. He emphasized that
he was seeking the truth and encouraged DeWeaver to tell his
side of the story.

In the beginning, Joyner described DeWeaver as appearing
comfortable, but as the interrogation continued, and the offi-
cers began asking questions relevant to shootings, DeWeaver
became slightly nervous. At times he was very quiet, other
times he was very talkative. At some point during the interro-
gation, DeWeaver expressed regret that he might be going to
jail and would not see his long-time girlfriend or their baby,
with whom she was pregnant. He expressed concern about
retaliation against his father and his brother, but Joyner denied
offering to protect DeWeaver’s family if DeWeaver made a
statement.

Joyner’s notes reflected that he took one break during the
interrogation, when DeWeaver asked for a moment by him-
self to think. Joyner and his partner left the room for about ten
minutes and when they returned, DeWeaver asked to see the
photographic lineup from which he had been identified.
Within five minutes, DeWeaver began confessing his involve-
ment in the shootings.

After DeWeaver had discussed the shootings with Joyner,
the officers tape-recorded DeWeaver’s statement. Joyner
began the tape-recording by recounting the Miranda warnings
he had given DeWeaver earlier and asking DeWeaver to
acknowledge them. Joyner asked DeWeaver to describe the
events of the shooting and DeWeaver did so. However,
DeWeaver refused to name the person who drove him to the
2206 DEWEAVER v. RUNNELS
shooting or the other shooter, referring to them as John 1 and
John 2. Otherwise, throughout the taped statement, DeWeaver
responded to all of the officers’ questions without hesitation.
At the end of the tape, Joyner asked DeWeaver if any threats
or promises had been made to him, and DeWeaver replied
they had not.

The state trial court found that when DeWeaver asked to be
taken back to jail in the beginning of the interrogation, the
request was not “indicative of a desire not talk.” As to volun-
tariness, the court found that there was no indication that
police had attempted to browbeat DeWeaver or otherwise
coerce him to make a statement. It determined that
DeWeaver’s statements that he had been brainwashed, he
lacked the necessary decision-making skills, and his will had
been overborne were not reflective of what had actually hap-
pened. The court emphasized that, during the taped statement,
he chose not to name the others involved, he corrected the
interrogating officers, and he denied being threatened or
promised anything. The trial court concluded that
DeWeaver’s statement was voluntary.

On direct appeal, DeWeaver challenged the trial-court deci-
sion, arguing, among other things, that his request to go back
to jail was an invocation of the right to silence. The state
appellate court concluded that asking to go back to jail was
not an invocation; therefore, DeWeaver’s Miranda rights
were not violated. It also determined that DeWeaver gave the
statement voluntarily, noting that because the trial court rea-
sonably credited Joyner’s testimony over DeWeaver’s, there
was no evidence of coercion other than the fact that it was a
custodial interrogation. Relying on Miranda, the court held
that because DeWeaver was given Miranda warnings and
signed the waiver, any coercive effect inherent in such inter-
rogation was dispelled. People v. DeWeaver, No. A091078,
2001 WL 1515830, at *5-7 (Cal. Ct. App. Nov. 28, 2001).
 DEWEAVER v. RUNNELS 2207
DeWeaver again challenged these conclusions by filing a
timely habeas corpus petition with the federal district court;
he now appeals the district court’s denial of his petition.

B. Alleged Miranda violation

[1] DeWeaver argues that under the Supreme Court’s opin-
ion in Miranda, asking to go back to the jail was an invoca-
tion of his right to remain silent that the police failed to
scrupulously honor. In Miranda, the Court created procedural
safeguards to protect people against the coercive nature of
custodial interrogations. 384 U.S. at 467. The Miranda Court
required police to inform suspects of their right to remain
silent, that any statement they make may be used against
them, and of their right to the presence of retained or
appointed counsel before custodial interrogation. Id. at 444.
After detailing the requisite warnings and explaining their sig-
nificance, the Miranda Court stated: “Once warnings have
been given, the subsequent procedure is clear. If the individ-
ual indicates in any manner, at any time prior to or during
questioning, that he wishes to remain silent, the interrogation
must cease.” Id. at 473-74.

[2] In essence, DeWeaver contends that this statement in
Miranda requires interrogation to immediately cease upon
any statement by a suspect that might be interpreted as an
invocation of the right to remain silent, even if the statement
is ambiguous. The Supreme Court has not yet directly
addressed ambiguous statements in the context of the right to
remain silent. In the context of another Miranda right, the
right to the presence of an attorney during interrogation, how-
ever, the Court has held that after a valid Miranda waiver, an
invocation of that right only halts interrogation when it is
clear and unambiguous.1 Davis v. United States, 512 U.S. 452,
459-61 (1994).
1
An ambiguous, pre-waiver statement might require different analysis,
see United States v. Rodriguez, 518 F.3d 1072, 1078-79 (9th Cir. 2008)
2208 DEWEAVER v. RUNNELS
The Court recognized that a rule requiring an interrogation
to cease based on an ambiguous invocation would become a
“ ‘wholly irrational obstacle[ ] to legitimate police investiga-
tive activity’ ” because such an ambiguous statement would
not reasonably inform the interrogating officers that the sus-
pect wanted a lawyer present. Id. at 460 (quoting Michigan v.
Mosley, 423 U.S. 96, 102 (1975)). The Court applied an
objective test, requiring a suspect to “articulate his desire to
have counsel present sufficiently clearly that a reasonable
police officer in the circumstances would understand the
statement to be a request for an attorney.” Id. at 459. In focus-
ing on the need for effective law enforcement, the Court noted
that this bright line rule protected both the suspect’s interests
and the valid investigatory tool of proper interrogation. Id. at
461.

[3] Since the Court’s decision in Davis, many state and fed-
eral courts have extended its rule and required suspects to
unambiguously invoke the right to remain silent before police
must halt an interrogation. United States v. Banks, 78 F.3d
1190, 1197-98 (7th Cir. 1996), vacated, Mills v. United
States, 519 U.S. 990 (1996), on remand, 122 F.3d 346, 350-
51 (7th Cir. 1997); Medina v. Singletary, 59 F.3d 1095, 1100-
01 (11th Cir. 1995); United States v. Johnson, 56 F.3d 947,
955 (8th Cir. 1995); People v. Stitely, 108 P.3d 182, 196 (Cal.

(determining that the Davis rule applies only after valid waiver, as a way
of reconciling the rule with the “historic presumption against finding
waiver of constitutional rights” and distinguishing between invocation and
waiver). Although there is some evidence suggesting that DeWeaver
requested to go back to jail before waiving his Miranda rights, he argues
on appeal that the request was made post-waiver and that any other inter-
pretation of the evidence would be unreasonable. By considering whether
it was an invocation and not how it affected waiver, the state appellate
court treated the request as though it was made after the waiver. Because
this is a reasonable interpretation of the evidence, and DeWeaver concedes
this point, we consider his request as being made post-waiver. We do not
address whether applying the Davis rule to such a request made before a
valid waiver would be contrary to Supreme Court precedent because the
issue is not properly before us.
 DEWEAVER v. RUNNELS 2209
2005); State v. Payne, 199 P.3d 123, 133-34 (Idaho 2008);
State v. Walker, 118 P.3d 935, 943-44 (Wash. Ct. App. 2005).
This court has several times declined to decide whether the
Davis requirement of a clear and unequivocal invocation
applies to the right to remain silent. See United States v.
Rodriguez, 518 F.3d 1072, 1078 n.5 (9th Cir. 2008) (avoiding
addressing the issue and noting that this court had so
demurred in four prior cases). We similarly decline to do so
here. The question before us is not whether the Davis rule
applies to an invocation of the right to remain silent, but
whether the state appellate court contravened Supreme Court
precedent by applying it in that manner. See Williams v. Tay-
lor, 529 U.S. 362, 405-06 (2000).

[4] In similar circumstances, the First Circuit, which has
also withheld judgment regarding the application of Davis to
the invocation of the right to remain silent, held that it could
not “deem unreasonable a conclusion by the [state] courts . . .
that [was] consistent with the approach taken by so many
respected tribunals.’ ” James v. Marshall, 322 F.3d 103, 108
(1st Cir. 2003) (quoting Bui v. DiPaolo, 170 F.3d 232, 239
(1st Cir. 1999)). We, likewise, could not conclude that appli-
cation of the Davis rule to an invocation of the right to remain
silent is contrary to or an unreasonable application of
Supreme Court precedent where the Supreme Court has nei-
ther “squarely addresse[d]” when an ambiguous statement
amounts to an invocation of the right to remain silent nor
refused to extend the Davis rule to an invocation of the right
to remain silent. Wright v. Van Patten, 128 S.Ct. 743, 746
(2008).

[5] In this case, although the state appellate court never
expressly applied Davis’s objective inquiry in analyzing
DeWeaver’s request to return to jail, its reasoning and result
are not contrary to Supreme Court precedent.2 See Early v.
2
The state appellate court based its ruling on three cases: Delap v. Dug-
ger, 890 F.2d 285, 293 (11th Cir. 1989), in which the court held, pre-
2210 DEWEAVER v. RUNNELS
Packer, 537 U.S. 3, 8 (2002) (noting that a state-court deci-
sion is not contrary to Supreme Court precedent for failure to
cite such decisions, “so long as neither the reasoning nor the
result of the state-court decision contradicts [it]”). The state
appellate court concluded that asking to be taken back to jail
“did not evidence a refusal to talk further.” People v.
DeWeaver, No. A091078, 2001 WL 1515830, at *5 (Cal. Ct.
App. Nov. 28, 2001). In so doing, it considered that
DeWeaver said nothing about ending the interrogation or not
wanting to talk, that the officers interrogating DeWeaver
knew that he knew how to invoke his right to silence because
he had done so a few days earlier, and Sergeant Joyner’s testi-
mony that he did not understand DeWeaver’s request to be an
invocation.3 Id. The state appellate court could properly con-
clude from these facts that a reasonable officer in the circum-
stances would not have understood DeWeaver’s request to be
an invocation of the right to silence. See Davis, 512 U.S. at
459.

Davis, that a suspect did not invoke (equivocally or otherwise) his right
to remain silent where he asked when he would be allowed to go home;
United States v. Clark, 67 F.3d 1154, 1163 (5th Cir. 1995), vacated on
other grounds, Coffman v. United States, 519 U.S. 802 (1996), in which
the court cursorily stated that questioning that continued after a suspect
asked to go home but then consented to further questioning was not coer-
cive or improper and, even if it was, admission of the statement had been
harmless; and Mueller v. Angelone, 181 F.3d 557, 574 (4th Cir. 1999), in
which the court held that a suspect had not clearly invoked his right to
counsel under Davis when he asked the interrogating officer if the officer
thought he needed an attorney.
3
The state appellate court noted that DeWeaver continued to speak with
Joyner after making the request to go back to jail, DeWeaver, 2001 WL
1515830, at *5, but we do not consider DeWeaver’s post-request
responses to further interrogation in determining whether DeWeaver’s
request was ambiguous. See Smith v. Illinois, 469 U.S. 91, 100 (1984)
(“[A]n accused’s postrequest responses to further interrogation may not be
used to cast retrospective doubt on the clarity of the initial request itself.”).
Given our conclusion that his request was ambiguous, any error in the
state appellate court’s consideration of his subsequent statements was
harmless. See Brecht v. Abrahamson, 507 U.S. 619, 637-38 (1993).
 DEWEAVER v. RUNNELS 2211
[6] Thus, the state appellate court’s reasoning and result are
in accord with Davis and a reasonable extension of that rule
to the right to remain silent. In such a case, AEDPA requires
us to let stand the state court’s ruling that no Miranda viola-
tion required suppression of DeWeaver’s statement. See
Early, 537 U.S. at 8; 28 U.S.C. § 2254(d).

C. Voluntariness

[7] A confession must be suppressed, even absent a
Miranda violation, when the totality of the circumstances
demonstrates that the confession was involuntary. Dickerson
v. United States, 530 U.S. 428, 434 (2000). However, if inter-
rogators obtained a confession after Miranda warnings and a
valid waiver, the confession was likely voluntary. See Mis-
souri v. Seibert, 542 U.S. 600, 608-09 (2004) (“[G]iving the
warnings and getting a waiver has generally produced a vir-
tual ticket of admissibility.”); Berkemer v. McCarty, 468 U.S.
420, 433 n.20 (1984) (“[C]ases in which a defendant can
make a colorable argument that a self-incriminating statement
was ‘compelled’ despite the fact that the law enforcement
authorities adhered to the dictates of Miranda are rare”).

[8] In his petition, DeWeaver makes no argument that the
Miranda warnings given were insufficient or that his waiver
was involuntary. Instead he relies on his account of a coercive
interrogation and vague allegations that his “will was over-
borne.” The state courts discredited DeWeaver’s version of
the interrogation as coercive, noting DeWeaver’s own state-
ment that Joyner made no threats or promises. People v.
DeWeaver, No. A091078, 2001 WL 1515830, at *6-7 (Cal.
Ct. App. Nov. 28, 2001). Believing Joyner’s account of the
interrogation, the court noted that the remaining vague allega-
tions of coercive techniques consisted only of the coercion
inherent in a custodial interrogation, which is dispelled by
sufficient Miranda warnings and waiver. Id. Because warn-
ings were given, a valid waiver obtained, and the record gives
no indication that his confession was other than a product of
2212 DEWEAVER v. RUNNELS
his free will, we conclude that the state appellate court’s deci-
sion was not contrary to Supreme Court precedent or an “un-
reasonable determination of the facts in light of the evidence
presented in the State court proceeding.” 28 U.S.C.
§ 2254(d)(2).

III. The “chocolate cake caper”

DeWeaver next challenges the trial judge’s interactions
with the jury during deliberations, culminating in his “choco-
late cake caper” jury instruction. The instruction was an illus-
trative hypothetical about his niece, Amy, stealing a piece of
chocolate cake. DeWeaver argues that the state appellate
court made an unreasonable factual determination when it
found no indication of coercion and decided contrary to
Supreme Court precedent in holding that the interactions were
not coercive. We address each argument in turn.

A. Factual and procedural background

When deliberations began, the jury requested that the trial
judge clarify the definitions of “unambiguous” and “con-
scious disregard for human life,” and inquired, “What are
[the] options if we are [at] an impasse? We have a juror who
is not cooperating.” Before receiving a response, the foreper-
son sent another note: “I am requesting an immediate audi-
ence with the judge, as one juror’s conduct is hindering the
progress of this panel . . . .”

The judge granted the foreperson an audience during which
the foreperson revealed that one juror was not open to the
suggestions of the other jurors and was making what the
foreperson considered to be snappy retorts and insulting com-
ments. The judge then re-instructed the entire jury regarding
the definition of “conscious disregard.” He also admonished
the jury:

The People and the defendant are entitled to the
individual opinion of each juror. Each of you must
 DEWEAVER v. RUNNELS 2213
consider the evidence for the purpose of reaching a
verdict if you can do so. Each of you must decide the
case for yourself but should do so only after discuss-
ing the evidence and the instructions with the other
jurors.

Do not hesitate to change an opinion if you are
convinced it is wrong. However, do not decide any
question in a particular way because a majority of
the jurors or any of them favor that decision . . . .

Remember that you are not partisans or advocates
in the matter. You are impartial judges of the facts.
The integrity of a trial requires jurors at all times
during they’re [sic] deliberations to conduct them-
selves as required by these instructions.

Accordingly, should it occur that any juror refuses
to deliberate or expresses an intention to disregard
the law or to decide the case based on penalty or
punishment or any other improper basis, it is the
obligation of the other jurors to immediately advise
the court of the situation.

The jury returned to deliberate further.

The next day, the foreperson asked if the judge would pro-
vide a further definition of “jury deliberation” to help con-
vince the juror to deliberate. The judge asked the foreperson
to explain what about the juror’s behavior indicated to the
foreperson that he was refusing to deliberate. The foreperson
described the juror as ignoring the conversation in the rest of
the jury and refusing to explain his positions, with which the
other jurors disagreed, using specific facts. The foreperson
noted that the one juror appeared to disagree with the other
jurors’ interpretations of the instructions. When asked, the
foreperson was clear that the juror was not basing his opinion
on an agenda or personal philosophy.
2214 DEWEAVER v. RUNNELS
Because the disagreement seemed to center on the interpre-
tation of certain instructions, the judge asked the foreperson
to return to the jury and create a list of terms on which it
needed clarification. After the foreperson returned to the
deliberation room to create the list, DeWeaver objected to the
court giving further definitions of terms, calling them “more
items to hit [the holdout juror] over the head with.” The gov-
ernment argued that the holdout juror should be removed for
refusing to deliberate. The court said it would not refuse to
define terms for the jury and would take a “wait and see”
approach to determining if the holdout juror was refusing to
deliberate.

Over the weekend, the court received another note from the
foreperson and a note from the holdout juror. The foreper-
son’s note asked the court to define “deliberate,” “premedita-
tion,” “reasonable doubt,” “circumstantial evidence,” “intent,”
and “intentional.” It also noted that “some jurors are ready to
walk if progress does not occur regardless of the conse-
quences.” The holdout juror’s note denied the foreperson’s
allegation that the juror was being belligerent or failing to
deliberate and stated that other jurors had conducted them-
selves contrary to the court’s instructions. As a separate issue,
the court had to replace a juror who had been in a car accident
with an alternate.

The court instructed the jury that because an alternate had
replaced a juror, it had to start over with its deliberations. The
court suggested that the jury consider choosing a new foreper-
son (while emphasizing that it was not a comment on the cur-
rent leadership) and asked the jury to reconsider the list of
terms it needed defined. At that time the court also discussed
the “jurors walking” comment:

That type of [ ] planning obviously is rather sharp,
it’s rather confrontational, and it sets a tone that
obviously gives concern to all of us. It is important
that everybody deliberate with an open mind. It’s
 DEWEAVER v. RUNNELS 2215
also imperative that you keep in mind that you are
not advocates, you are not partisans, you are judges
of the facts, and with that approach and with that in
mind and with all the other instructions that I’ve
given you, when — you know, these are difficult
issues, we understand that and we appreciate that.
And sometimes one’s patience grows short and
sometime personalities can get involved in the delib-
erations and take greater precedent over the issues
that are — everybody’s there to deal with.

The court adjourned the jury but asked the holdout juror to
remain.

The holdout juror accused the other jurors of considering
improper bases like DeWeaver’s co-defendant’s conviction,
personal knowledge of the crime scene, and the potential pen-
alty. He further stated that the other jurors had commented
that the defense had failed to prove its case. The holdout juror
stated that he had told the rest of the jurors that what they
were doing was improper and for the most part it stopped. The
court then asked the juror to return to the jury and send down
the foreperson. The foreperson confirmed that some imper-
missible bases had come up in the conversation, but that once
he had noted the improprieties the jury had moved on without
further considering such improper bases. At the end of his dis-
cussion with the foreperson, the court explained that it would
define the requested terms for a jury in a presentation the next
day.

In defining the terms, the court used an expanded version
of the “chocolate cake caper” hypothetical to illustrate the
terms. The story, which fills 20-pages of transcript, was well
summarized by the state appellate court:

In [the] original version, the court had recounted
the story of a dinner at which his young niece Amy
repeatedly insisted on having some chocolate cake
2216 DEWEAVER v. RUNNELS
right away but was told by her mother she would
have to wait until after dinner. When the mother sub-
sequently went into the kitchen to check on dinner,
she discovered a chair had been pulled from the
kitchen table to the counter where the cake was and
that there was an irregular hole in the cake. The
court discussed these facts, as well as cake crumbs
and frosting found on Amy’s face, as circumstantial
evidence that she had taken and eaten some of the
cake. The court also explained that if the mother saw
Amy standing on the chair, eating the cake, her testi-
mony about her observations would be direct evi-
dence. Addressing intent, the court explained that
intent could be determined by statements made at or
near the time of the incident and the circumstances
surrounding the act. Returning to Amy, the court
noted her intent could be inferred from her statement
that she “wanted cake and wanted it now,” from the
chair having been moved, and from a child-sized
gouge in the cake.

During deliberations, the court presented an
expanded version of this hypothetical. Again the
court explained how Amy’s intent could be inferred
from statements and circumstances surrounding the
act. The court hypothesized that the cake theft
required premeditation and deliberation, which, it
observed, were shown by Amy’s statement that she
wanted the cake now and by her having moved and
climbed on a chair to reach it. The court similarly
related its hypothetical to the reasonableness of two
possible explanations for the cake on Amy’s face
and hands. Suppose, the court hypothesized, Amy
said she had moved the chair and climbed up to sim-
ply look at the cake, and then lost her balance and
fell on the cake. Relating the child’s explanation to
the [form] instruction (CALJIC 2.02) involving two
reasonable interpretations of circumstantial evi-
 DEWEAVER v. RUNNELS 2217
dence, the court stated that Amy’s interpretation was
unreasonable in light of the evidence: Amy’s earlier
demand for cake, the hole gouged in it, the cake on
her face and hands, and that she was chewing when
discovered.

Turning to the jury’s request for clarification of
“unambiguous intent” in the context of attempted
murder, the court defined unambiguous as “clear,
definite, susceptible of but one meaning, to unequiv-
ocally show an intent to kill.” Again referring to the
Amy story, the court added to the hypothetical that
Amy (1) enlisted her little sister to help “get some
cake”; and (2) was caught red-handed just as she
started to grab it. The court stated: “[Y]ou look at
her conduct, you can consider her statements before
or at the time of the act itself. That shows her intent.
You look at the means that are utilized, the manner
in which the act is done, and the totality of the cir-
cumstance[s]. That shows a clear intent to do the one
thing that logically makes sense. [¶] I mean, one
could say, well, maybe she was just trying to see
how close her finger could get. That doesn’t make
sense.”

People v. DeWeaver, No. A091078, 2001 WL 1515830, at *8
(Cal. Ct. App. Nov. 28, 2001).

After giving this expanded illustration, the trial judge
admonished the jury to consider his story in the light of the
other instructions and reminded the jurors of their duties. Spe-
cifically, he said:

Please do not construe my explanation to be a com-
ment by me on the evidence or a suggestion on what
you should find to be the facts. Please remember that
you are the exclusive judges of the facts and you
2218 DEWEAVER v. RUNNELS
may disregard any or all of my comments if they do
not coincide with your views of the evidence.

Finally the judge reminded the jury: “Do not hesitate to
change an opinion if you are convinced it is wrong. However,
do not decide any question in a particular way because a
majority of the jurors or any of them favor that decision.”
Without further interaction with the judge, the jury returned
its guilty verdict later that day.

On direct appeal, the state appellate court determined:
“[T]he record of the court’s inquiries into the questions and
problems reported by the jurors reveals a prudent, reasonable
and balanced course of action. We search the record in vain
for any indication of coercion, express or implicit . . . .”
DeWeaver, 2001 WL 1515830, at *9 n.7. However, because
the hypothetical presented only situations in which Amy was
guilty, the court concluded that it had a prosecutorial slant. Id.
at *10. In deciding that any such error was harmless, it con-
sidered whether the instruction denied DeWeaver a fair trial.
Id. The appellate court emphasized that the jury instruction
correctly stated the law, the trial judge advised the jury not to
use the instruction as a comment on the evidence, the facts of
the hypothetical were very different from the facts of the
shootings, the timing of the verdict did not indicate it was
induced, and guilt or innocence was not a close factual issue.
Id. at *10-11.

B. The state court’s factual determinations

DeWeaver argues that the state court ignored material evi-
dence in determining that the record contained no indication
of coercion. He argues that, as a result, the state court’s fact-
finding process was defective and its decision based on an
unreasonable determination of the facts. In Taylor v. Maddox,
366 F.3d 992, 1000 (9th Cir. 2001), on which DeWeaver
relies, this court cautioned that “before we can determine that
the state-court fact-finding process is defective in some mate-
 DEWEAVER v. RUNNELS 2219
rial way . . . , we must be satisfied that any appellate court to
whom the defect is pointed out would be unreasonable in
holding that the . . . fact-finding process was adequate.” In
Taylor, this court determined that no reasonable appellate tri-
bunal would ignore the testimony of a witness that corrobo-
rated the petitioner’s version of challenged events. Because
the state court had blatantly ignored such probative evidence,
this court set aside its findings as unreasonable. Id. at 1005-
07.

In contrast, DeWeaver disagrees with the state court’s
interpretation of the record but does not point to any material
fact that the court failed to consider. The state appellate court
accurately recounted the trial court’s interactions with the
jury; nothing in the record indicates that its fact-finding pro-
cess was unreasonable. Insofar as DeWeaver argues that the
state appellate court failed to properly weigh the evidence, we
consider this further in analyzing whether the court’s legal
conclusion regarding coerciveness was contrary to or an
unreasonable application of Supreme Court precedent.

C. Alleged coerciveness of the instruction

[9] DeWeaver argues that the “chocolate cake caper”
instruction was so coercive that it constituted directing a ver-
dict. “Any criminal defendant . . . being tried by a jury is enti-
tled to the uncoerced verdict of that body.” Lowenfield v.
Phelps, 484 U.S. 231, 241 (1988). Thus, an instruction is
unconstitutionally coercive if it denies a defendant the due
process right to a trial by a fair and impartial jury. See id. That
right is not violated when the judge gives a so-called Allen
charge, named for Allen v. United States, 164 U.S. 492, 501-
02 (1896), which encourages a dissenting juror to give weight
to the views of the majority. To determine whether an instruc-
tion is coercive, the Court “consider[s] the supplemental
charge given by the trial court in its context and under all the
circumstances.’ ” Lowenfield, 484 U.S. at 237 (quoting Jen-
kins v. United States, 380 U.S. 445, 446 (1965) (per curiam)).
2220 DEWEAVER v. RUNNELS
In a case similar to this one, Early v. Packer, 537 U.S. 3
(2002), the Supreme Court reversed a grant of habeas, deter-
mining that the California court had reasonably concluded an
instruction was not coercive. In that case, the jury deliberated
for 28 hours before one juror asked to be removed from the
jury. The foreperson accused that juror of failing to deliberate
in a note that said, “nearly all my fellow jurors questio[n] her
ability to understand the rules and her ability to reason.” Id. at
4. The court read that note aloud to the entire jury, instructed
it that the one juror had the right to disagree with the rest of
the jurors, inquired as to the latest vote count, and admon-
ished the jury to consider the law as instructed and the facts
as they found them. The next day, the one juror again asked
to be removed, but the court insisted she continue trying to
deliberate. The jury returned a guilty verdict after two more
days of deliberation. Id. at 4-6. The Supreme Court upheld the
state appellate court’s determination that no coercion had
occurred, concluding that it was neither contrary to nor an
unreasonable application of Supreme Court precedent. Id. at
11.

In many ways, the facts of this case are not sufficiently dis-
tinguishable from those in Early to warrant a different result.
Although DeWeaver argues that the state court ignored how
the trial court singled out the holdout juror and inquired into
the deliberative process, the trial court in this case did no
more in that regard than the court in Early. The only distinc-
tion between the two cases is the forty-five minute “chocolate
cake caper” instruction, which the state appellate court con-
cluded was prosecutorially slanted because it only presented
hypothetical situations in which the suspect was guilty.4 The
4
DeWeaver also argues that the state court improperly applied harmless
error analysis to this instruction, alleging that the error was structural.
DeWeaver does not argue that a prosecutorial slant alone is structural error
but that a coercive jury instruction would be structural error. Because we
conclude that the state court reasonably determined that the instruction
was not coercive, we do not reach the question of whether a coercive
instruction would be structural error.
 DEWEAVER v. RUNNELS 2221
state appellate court considered the instruction an attempt to
respond to the jury’s concerns and questions about the law,
lauding its goal of explaining the law in an understandable
manner while warning that such explanations must be evenly
balanced. The court concluded that the instruction properly
stated the law and, most importantly, that it did not deprive
DeWeaver of his right to a fair trial. DeWeaver, 2001 WL
1515830, at *9-11.
[10] Although the state court performed its fair-trial analy-
sis in the context of harmless error, its analysis was consistent
with Lowenfield, in which the Court describes an unconstitu-
tionally coercive jury instruction as one that deprives a defen-
dant of due process. 484 U.S. at 241. The state appellate court
properly considered the totality of the circumstances sur-
rounding the trial judge’s interactions with the jury, empha-
sizing that the trial judge correctly instructed the jury on the
law, advised the jury not to use the instruction as a comment
on the evidence, and employed hypothetical facts very differ-
ent from the facts of the shootings. DeWeaver, 2001 WL
1515830, at *10. Neither the court’s reasoning nor result were
contrary to Supreme Court precedent; therefore, we must let
the state court’s decision stand. See Early, 537 U.S. at 8.
IV. Conclusion
In conclusion, DeWeaver fails to demonstrate any way in
which the state-court decision unreasonably applied or was
contrary to Supreme Court precedent. Nor does he establish
that the state court decision was based on an unreasonable
factual determination. The state court reasonably concluded
that Miranda was not violated and that DeWeaver’s confes-
sion was voluntary. Its decision regarding the allegedly coer-
cive jury instruction was not based on an unreasonable
determination of the facts, nor were its conclusions concern-
ing coercion contrary to Supreme Court precedent. Therefore,
we affirm the district court’s denial of the habeas petition.
AFFIRMED.