RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit I.O.P. 32.1(b)
File Name: 18a0124p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
JOSEPH HENDRIX, ┐
Petitioner-Appellee/Cross-Appellant, │
│
> Nos. 16-2279/2310
v. │
│
│
CARMEN PALMER, Warden, │
Respondent-Appellant/Cross-Appellee. │
┘
Appeal from the United States District Court
for the Eastern District of Michigan at Detroit.
No. 2:11-cv-14659—Avern Cohn, District Judge.
Argued: April 25, 2018
Decided and Filed: June 26, 2018
Before: GILMAN, COOK, and GRIFFIN, Circuit Judges.
_________________
COUNSEL
ARGUED: Linus Banghart-Linn, OFFICE OF THE MICHIGAN ATTORNEY GENERAL,
Lansing, Michigan, for Appellant/Cross-Appellee. Michael Skinner, LAW OFFICES OF
MICHAEL SKINNER, Lake Orion, Michigan, for Appellee/Cross-Appellant. ON BRIEF:
John S. Pallas, OFFICE OF THE MICHIGAN ATTORNEY GENERAL, Lansing, Michigan, for
Appellant/Cross-Appellee. Michael Skinner, LAW OFFICES OF MICHAEL SKINNER, Lake
Orion, Michigan, for Appellee/Cross-Appellant.
_________________
OPINION
_________________
RONALD LEE GILMAN, Circuit Judge. Joseph Hendrix is currently serving a life
sentence imposed by a Michigan state court following his conviction for felony murder,
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carjacking, and unlawfully driving away a motor vehicle. The district court conditionally
granted Hendrix’s application for a writ of habeas corpus brought under 28 U.S.C. § 2254.
Warden Carmen Palmer (the State) appeals the issuance of the writ, and Hendrix cross-appeals
the denial of relief on several alternative claims.
At trial, the State presented evidence that Hendrix committed a carjacking that resulted in
a woman’s death. The evidence included statements that Hendrix made to the police after being
reinterrogated following the invocation of his right to counsel—statements that the State now
concedes were inadmissible under Supreme Court precedent. Hendrix’s trial counsel failed to
challenge the admissibility of these statements, however, and they became central to the State’s
case.
On direct appeal in the Michigan courts, Hendrix challenged the admission of these
statements as violating his Fifth Amendment rights under Miranda and its progeny. He also
argued that his counsel’s failure to challenge the statements’ admission violated his Sixth
Amendment right to the effective assistance of counsel. The State opposed Hendrix’s claims on
the theory that its use of the statements was proper. Michigan’s courts uniformly denied Hendrix
relief.
Hendrix then brought this federal habeas action. After the district court ordered oral
argument on Hendrix’s Fifth Amendment claim, the State changed its position, conceding for the
first time that Hendrix’s statements were admitted erroneously, but now arguing that the error
was harmless. The district court granted habeas relief on Hendrix’s Fifth and Sixth Amendment
claims, but denied relief on his other claims. Hendrix and the State both appealed.
For the reasons set forth below, we (1) AFFIRM the judgment of the district court
granting Hendrix habeas relief based on his Fifth and Sixth Amendment claims; (2) REVERSE
the district court’s denial of Hendrix’s Doyle claim; and (3) AFFIRM the holding of the district
court that the evidence was sufficient to support Hendrix’s conviction. Hendrix is therefore
entitled to the habeas relief granted by the district court, but the State is entitled to retry him if it
so desires, subject to the time constraint imposed by the district court. The remaining issues
raised by Hendrix are moot, and we do not consider them.
Nos. 16-2279/2310 Hendrix v. Palmer Page 3
I. BACKGROUND
A. Factual background
On the evening of September 5, 2006, Gina Doen was running errands with her mother
and daughter in Shelby Charter Township, Michigan, located about 15 miles north of Detroit.
Gina parked her Dodge Caravan at a strip mall and, along with her daughter, walked into a dry
cleaner. Her 65-year-old mother, Evangeline Doen, remained in the minivan, so Gina left the
vehicle’s doors unlocked and the keys in the ignition. After about five minutes in the dry
cleaner, Gina walked out and saw her mother lying on the pavement. The minivan was gone.
Her mother’s head was bleeding.
The police arrived minutes later, and Evangeline Doen was taken to the hospital.
Although Evangeline had sustained a serious head injury, she was still conscious and able to
speak. At the hospital, Evangeline told a police officer what had happened.
The officer testified at Hendrix’s trial that Evangeline told him that she had been sitting
in the front seat of the minivan when a man got into the driver’s seat. Evangeline “told this
young man that he had got the wrong car, he got into the wrong car,” but the man “told her to get
out and started backing up the van.” She tried to get out, but as she was struggling to remove her
seatbelt, the man pushed her out the door. Evangeline described the carjacker as a “tall, thin,
white male with possible glasses, and . . . possible blonde hair . . . [and] some mention about a
brown shirt.”
Approximately six hours after the carjacking, at around 1:30 a.m. on September 6, 2006,
Officer Kyle Bryent encountered the stolen minivan parked at a gas station in an area of Detroit
known for drug trafficking. Hendrix was inside. Officer Bryent had previously arrested Hendrix
in the same area, although the record does not disclose the reason for that arrest. After Officer
Bryent removed Hendrix from the minivan and arrested him, Sergeants Brad Ferguson and Stan
Muszynski transported Hendrix from Detroit to Shelby Charter Township.
Hendrix had brown hair at the time of his arrest. Inside the minivan, officers found a
beige and white cap, a black knit hat, a white do-rag, and a makeup bag. Hendrix’s girlfriend,
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Michelle Zlatevski, later told the police that the makeup bag was probably hers. Fingerprints
belonging to Hendrix were found on the vehicle’s rearview mirror and sliding door. Officers
also found fingerprints that belonged to neither Hendrix nor Gina.
Once in the police car, Hendrix acknowledged and waived his Miranda rights. Sergeant
Muszynski then questioned him about how he acquired the minivan. Hendrix stated that he did
not know how he acquired the minivan and did not know what to say. He appeared “very
nervous.”
Later that morning, Detective Terry Hogan removed Hendrix from his jail cell for
interrogation. Detective Hogan described the interrogation in his police report:
At approx. 7:30 AM I escorted Hendrix from the Shelby Twp cell block to the
interview room. I advised Hendrix of his rights off the Shelby Twp advise [sic] of
rights forms. Hendrix refused to speak with me until he had the opportunity to
speak with an attorney. I returned Hendrix to the cell block without any further
questioning.
An advice-of-rights form signed by Hendrix confirms that he requested an attorney.
Detective Hogan later testified that, at this meeting with Hendrix, he informed Hendrix that a
woman was seriously injured during the minivan’s carjacking and that she might die from her
injuries. The record does not reveal when during this meeting Detective Hogan informed
Hendrix of the seriousness of the victim’s condition, but Detective Hogan’s trial testimony
strongly implies that it was after Hendrix had refused to cooperate.
Despite Hendrix having requested an attorney at the September 6 meeting and not yet
having met with one, Detective Hogan sought to interrogate him again two days later. As
Detective Hogan recorded in a report: “On 9/8/06 myself and D/Sgt. Muszynski again tried to
interview suspect Joseph Hendrix.” Detective Hogan presented Hendrix with another advice-of-
rights form at the September 8 meeting, which Hendrix refused to sign. Hendrix, according to
Detective Hogan, nonetheless agreed to speak with him.
At trial, the State elicited little testimony regarding Hendrix’s statements to the police on
September 6. But it elicited extensive testimony regarding his statements on September 8.
Detective Hogan testified that; on September 8, Hendrix did not want to say where he was during
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the evening of September 5. Hendrix stated only that he had been in Sterling Heights and had
called his grandmother’s house from a 7-Eleven store. But investigators found no evidence of a
call from area pay phones to Hendrix’s grandmother, although his grandmother told Detective
Hogan that she remembered receiving a call from Hendrix that day.
Detective Hogan also testified that Hendrix had cryptically said to “just check with [the
Detroit Police Department], they know the truth.” Finally, Hendrix asked Detective Hogan “if
he was going to be charged with murder or homicide.” Soon afterwards, Hendrix clammed up,
saying “I don’t think I’m going to say anymore, because . . . I don’t want to get into anymore
trouble.”
Detective Hogan further testified that he surmised from Hendrix’s reluctance to divulge
his September 5 whereabouts that Hendrix was “afraid to admit that he’s the one that actually
pushed Mrs. Doen out of the vehicle.” He considered Hendrix’s silence “noteworthy” because
“[i]f he’s not the thief, he’s not going to want to be charged with a crime of that type of nature.”
Evangeline Doen died on her tenth day in the hospital, having suffered from a subdural
hematoma. At trial, the medical examiner testified that her death was primarily caused by “blunt
force head trauma,” consistent with a “decent fall like from the back of your head with the
concrete.”
The State also sought to link Hendrix to the carjacking with evidence that he had
committed similar thefts in the past. In particular, the State emphasized that the circumstances of
the carjacking—including its occurrence near Hendrix’s residence, the carjacker’s opportunistic
use of keys left in the ignition, and the minivan’s ultimate destination in a drug-trafficking area
of Detroit—were consistent with the circumstances of prior vehicle thefts that Hendrix had
committed.
The State presented evidence that the first such theft occurred approximately four years
earlier, “just right around the block” from where Hendrix lived. Jeffrey Piontkowski testified
that, in December 2002, he walked out of a restaurant to see a man behind the wheel of his 1985
GMC pickup truck. Trying to thwart the theft, Piontkowski opened one of the truck’s doors and
Nos. 16-2279/2310 Hendrix v. Palmer Page 6
managed to get his hand and foot inside. But as the thief started driving away, Piontkowski was
thrown off the truck and onto the pavement. Hendrix later pleaded guilty to the theft.
The State also presented evidence that Hendrix had stolen two vehicles only days before
the theft of Gina Doen’s minivan, again in areas near his residence. Maureen Scott testified that,
on August 31, 2006, her Ford Explorer was stolen from a parking lot outside of a Little Caesar’s
Pizza. She had left her keys in the vehicle. The police found the Explorer shortly after midnight
the following day, crashed into a telephone pole about two blocks from where Doen’s minivan
was later found. Inside the Explorer were two inmate bracelets and an arraignment sheet, all
belonging to Hendrix.
Next, Louie George testified that, on September 3, 2006, his 2005 Dodge Ram was stolen
while parked in front of a 7-Eleven store. He had left the doors unlocked and the keys inside.
The police discovered the truck in Detroit shortly thereafter, roughly two blocks from where they
had found Scott’s Explorer. Hendrix was alone inside.
Detective Hogan testified that, in his opinion, the shared characteristics of these prior
vehicle thefts suggested that Hendrix had a modus operandi. The detective also noted that no
similar thefts had occurred since Hendrix’s arrest. For these reasons, and because of Hendrix’s
September 8 statements, Detective Hogan believed that Hendrix had stolen Gina Doen’s
minivan.
The State also adduced evidence of a motive that could explain Hendrix’s modus
operandi. Several officers testified that the area where they discovered the Ford Explorer, the
Dodge Ram, and the Dodge Caravan is a known narcotics area—“poor” and full of “drug
houses”—where addicts can trade cars for drugs and sex. Such thefts are usually crimes of
opportunity, the officers said, which means that drug addicts typically steal cars from areas near
where they live or work. Professional car thieves, in contrast, typically take orders to steal
particular kinds of cars, which might not be readily at hand, so such thieves are more likely to
steal cars in areas further from their homes.
During closing argument, the prosecutor emphasized to the jury that, since Hendrix’s
arrest, “there haven’t been any car thefts like that,” and the “car thefts stopped after he was
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locked up.” The prosecutor also spent considerable time making the following points that
Hendrix has challenged as improper: that Hendrix presented no alibi witnesses; that the police
would not bring charges against an innocent person; and that Hendrix had already shown
himself, by his theft of Piontkowski’s GMC pickup truck, to be capable of violence.
Further, in his closing argument, the prosecutor relied heavily on Hendrix’s silence on
September 8 as evidence of guilt. The relevant portion of that argument is as follows:
What’s more important now is Detective Hogan’s interview with [Hendrix] on
September 8 at the Macomb County Jail. Detective Hogan says a woman was
badly injured, pushed out of that minivan, and she might die, and this is your
opportunity to tell what happened. In other words, maybe not verbalize precisely
as follows goes like this: Tell me where you were, give me an alibi, who were
you with, and how did you obtain the vehicle? Because if you can give me that
information, then I can investigate it, and I can clear you. There’s no question to
14 of you [on the jury] that if Defendant had an alibi for his whereabouts say
between 6:00 p.m., 7:30 p.m., he wouldn’t have been charged. The alibi would
have been investigated, and if true, he wouldn’t be charged with this carjacking.
Where was he? Ask yourselves where was he? We’re not asking where he was
from 3:00 a.m. to 5:00 a.m., where he might have been sleeping alone where
nobody knows. Everybody knows where he was and where she was two days
earlier, or three days earlier during the evening, everybody knows that. Now, he’s
in the County Jail, knows he’s been arrested for a crime in connection with this
car theft, carjacking, yet, and he’s had time to think about it too, and here comes
Terry Hogan. Now, the defense, not Mr. Sheikh, he’s a great guy, but the
Defendant might be thinking well, Hogan is my enemy, Hogan just wants to
frame me. But, Hogan wants to find out who did this. This is a serious case
where a woman might die. And she did die. Hogan wants to know who did it.
The Defendant has the alibi, and the alibi can be verified. Alibis easily can be
verified. For example, what if Defendant were at home and engaged in a long
telephone call: The telephone bills would support that, that he was on the phone
from say six to eight p.m., or if he went to a restaurant, saw him use a credit card,
that could be verified. If he’s at a friend’s house, a relative’s house, that all could
be verified. The point is if he had an alibi, he would have told Detective Hogan.
But, there is no alibi. And you know why there’s no alibi? Because there’s no
alibi. He has none. He has none. There is no doubt in this world that if had an
explanation for where he was at that time, on that day, we would know it. He
would have told Sergeant Ferguson, and if not Sergeant Ferguson, he would have
told Detective Hogan. When he can’t tell where he is, what does that mean?
Because he wasn’t anywhere other than Vineyards parking lot at around 6:50 p.m.
Committing his thefts by his unique modus operandi. . . . He’s not some 16-year-
old kid, somebody facing his first trouble with the law. He’s been around. He
knows the drill. And he has heard from Detective Hogan that the woman might
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die. Now, ask yourselves, would anybody with any intelligence know that he’s
about to face a very serious charge, carjacking, and felony murder if the woman
dies. If you’re not the person who took the car at Vineyards, you’re going to be
clambering [sic], be wailing. Detective, let me tell you what happened. This is
how I got the car, Detective. I didn’t want to say anything before, but here’s how
it happened. Never. Not one word. He says, oh, I don’t want to say anymore,
because it will get me into trouble. He tells Sergeant Ferguson, I don’t know how
I got the minivan. He knows, he’s the thief.
The prosecutor then continued:
[The police] did what they could, and finally the Defendant had an opportunity to
tell us what happened on September 6 and September 8 and he didn’t. His silence
is defining, his silence speaks a thousand words. His silence in refusing to say
from where he made the call, how he obtained the vehicle, and who he was with
during the important times. That’s like a thunderbolt from the sky. In other
words, he’s saying, I did it. Because if I didn’t do it, I’ll tell you why. And by
the way here we are, six months and 16 days since the incident. And have you
been presented with an alibi witness for the Defendant? No. Not one. Not one
who can say he or she was with the Defendant, 5:00, 6:00, 7:00, 8:00. Not one.
Immediately after this argument, the trial court sua sponte instructed the jury that it could
not draw any adverse inference from the fact that Hendrix had not testified at trial. But the court
drew a distinction between Hendrix’s silence in court and his silence while in custody,
erroneously instructing the jury that it could consider Hendrix’s silence in custody as evidence of
his guilt.
The jury found Hendrix guilty of carjacking, felony murder, and unlawfully driving away
a motor vehicle. He was sentenced to life in prison.
B. Procedural background
The procedural history of this case is complex. Hendrix initially appealed his conviction
to the Michigan Court of Appeals. In that court, he filed a motion to remand so that he could
investigate the same Miranda and ineffective-assistance claims that he still presses today.
Critically, his motion to remand presented the Michigan Court of Appeals with evidence that his
statements on September 8, 2006 were obtained in violation of his constitutional rights. It also
made claims of prosecutorial misconduct, error in admitting evidence of prior bad acts, and
insufficient evidence.
Nos. 16-2279/2310 Hendrix v. Palmer Page 9
In a one-page order, the Michigan Court of Appeals summarily denied Hendrix’s motion
to remand “for failure to persuade the Court of the necessity of a remand at this time.” The court
affirmed Hendrix’s convictions in a separate opinion.
Hendrix then filed an application for leave to appeal with the Michigan Supreme Court,
raising the same claims. That Court remanded to the Michigan Court of Appeals with orders to
address Hendrix’s claim regarding the alleged insufficiency of the evidence.
On remand, the Michigan Court of Appeals rejected that claim and again affirmed
Hendrix’s convictions. Hendrix filed this federal habeas action after the Michigan Supreme
Court denied his second application for leave to appeal. At the same time, however, Hendrix
moved to stay the proceedings so that he could return to the state courts and file a motion for
relief from judgment. The district court granted the stay.
Returning to the state trial court, Hendrix filed a motion for relief from judgment. That
motion sought relief on the grounds that (1) Hendrix’s trial counsel was ineffective for failing to
adequately investigate evidence that, after Hendrix’s arrest, thefts of unlocked vehicles whose
keys had been left in the ignition had continued; (2) the prosecutor posed improper questions to
witnesses and presented improper burden-shifting arguments to the jury; and (3) Hendrix’s
appellate counsel provided ineffective assistance by not raising these issues in Hendrix’s direct
appeal. Finding each of these claims meritless, the trial court denied Hendrix’s motion for relief
from judgment.
Next, Hendrix filed an application for leave to appeal to the Michigan Court of Appeals.
That application was denied. Hendrix then filed an application for leave to appeal to the
Michigan Supreme Court. That application was denied as well. Finally, Hendrix moved to
reopen this federal habeas action in the district court. The court granted the motion and ordered
oral argument on Hendrix’s Fifth Amendment claim. In supplemental briefing, the State
conceded for the first time that the admission of Hendrix’s September 8, 2006 statements was
erroneous. It maintained, however, that the error was harmless.
The district court disagreed. Concluding that Hendrix was entitled to relief on his Fifth
and Sixth Amendment claims, the court issued a conditional writ of habeas corpus, ordering the
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State to either take action within 90 days to afford Hendrix a new trial or unconditionally release
him from custody. Hendrix v. Palmer, 205 F. Supp. 3d 895, 907, 909, 911 (E.D. Mich. 2016).
II. ANALYSIS
A. Standard of review
“In a habeas corpus appeal, we review the district court’s legal conclusions de novo, but
will not set aside its factual findings unless they are clearly erroneous.” Fleming v. Metrish,
556 F.3d 520, 524 (6th Cir. 2009) (quoting Ivory v. Jackson, 509 F.3d 284, 291 (6th Cir. 2007)).
Where, as here, a state court has adjudicated the merits of a petitioner’s claims, the federal courts
must review those claims under the standard set out in the Antiterrorism and Effective Death
Penalty Act of 1996 (AEDPA), 28 U.S.C. § 2241 et seq. This standard is highly deferential to
the state courts. Miller v. Stovall, 742 F.3d 642, 645 (6th Cir. 2014).
Under the AEDPA standard, a federal court may not grant habeas relief unless the state
court’s adjudication
(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 decision is contrary to clearly established federal law if the
two are “‘diametrically different,’ ‘opposite in character or nature,’ or ‘mutually opposed.’”
Williams v. Taylor, 529 U.S. 362, 405 (2000) (O’Connor, J., concurring) (quoting Webster’s
Third New International Dictionary 495 (1976)). Alternatively, a state-court decision is based on
an unreasonable determination of the facts if it is “‘objectively unreasonable,’ not simply
erroneous or incorrect.” Fleming, 556 F.3d at 525 (quoting Williams, 529 U.S. at 409). A state
court’s factual determinations are entitled to a presumption of correctness that is rebuttable only
by clear and convincing evidence. 28 U.S.C. § 2254(e)(1).
Nos. 16-2279/2310 Hendrix v. Palmer Page 11
B. The Michigan courts adjudicated Hendrix’s claims on the merits, so AEDPA’s
elevated standard of review applies.
A threshold question is whether the Michigan courts adjudicated Hendrix’s claims on the
merits. This question is significant because claims adjudicated on the merits in a state-court
proceeding are reviewed under AEDPA’s highly deferential standard. Hendrix argues that the
Michigan courts did not adjudicate the merits of his Miranda and ineffective-assistance claims,
but he makes no such argument regarding his other claims.
Hendrix presented his Miranda and ineffective-assistance claims to the Michigan Court
of Appeals in documents titled “Appellant’s Brief on Appeal” and “Motion to Remand.” That
court summarily denied the motion to remand “for failure to persuade the Court of the necessity
of a remand at this time.” Hendrix then filed a motion for reconsideration of the Miranda issue.
The court summarily denied that motion as well.
Under binding precedent, the denial of Hendrix’s motion to remand constituted an
on-the-merits adjudication of the claims presented in that motion. “When a federal claim has
been presented to a state court and the state court has denied relief, it may be presumed that the
state court adjudicated the claim on the merits in the absence of any indication or state-law
procedural principles to the contrary.” Harrington v. Richter, 562 U.S. 86, 99 (2011).
This court, in Nali v. Phillips, 681 F.3d 837, 851–52 (6th Cir. 2012), applied
Harrington’s ruling in the context of a procedural history much like that here. The petitioner in
Nali presented the Michigan Court of Appeals with a “motion to remand so that the trial court
could hold an evidentiary hearing to develop the factual record” regarding his ineffective-
assistance claim. Id. at 852. In words very similar to those it used here, the Michigan Court of
Appeals “denied [the petitioner’s] motion to remand ‘for [petitioner’s] failure to persuade the
Court of the need to remand’ the case at that time.” Id. (second alteration in original) (quoting
the state court’s order). This court held that Nali’s ineffective-assistance claim had been
adjudicated on the merits by the Michigan Court of Appeals. Id.
Here, the same state court used substantially the same language to dispose of Hendrix’s
Miranda and ineffective-assistance claims. Based on Nali, those claims are deemed to have been
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adjudicated on the merits. We therefore review all of Hendrix’s claims under AEDPA’s elevated
standard of review.
C. As the State now concedes, Hendrix’s September 8, 2006 statements to the police
were obtained in violation of his Fifth Amendment rights, making their admission at
trial erroneous.
Hendrix argued throughout his direct appeal that the trial court erred in admitting
Detective Hogan’s testimony regarding Hendrix’s September 8 statements. The State opposed
that argument in the Michigan courts. But after Hendrix filed this federal habeas action, the
State finally conceded—“after all this time,” as the district court ruefully put it—that the trial
court’s admission of testimony regarding Hendrix’s September 8 statements was erroneous.
Hendrix v. Palmer, 205 F. Supp. 3d 895, 903 (E.D. Mich. 2016).
The governing law is beyond dispute. A person “held for interrogation must be clearly
informed” that he has the right “to remain silent,” “to consult with a lawyer[,] and to have the
lawyer with him during interrogation.” Miranda v. Arizona, 384 U.S. 436, 471, 473–74 (1966).
After these warnings are given, if the person “indicates in any manner . . . that he wishes to
remain silent, the interrogation must cease.” Id. at 473–74. This is because “any statement taken
after the person invokes his privilege cannot be other than the product of compulsion, subtle or
otherwise.” Id. at 474.
Accordingly, “it is inconsistent with Miranda and its progeny for the authorities, at their
instance, to reinterrogate an accused in custody if he has clearly asserted his right to counsel.”
Edwards v. Arizona, 451 U.S. 477, 485 (1981). The Edwards rule against reinterrogation,
moreover, is not offense-specific: “Once a suspect invokes the Miranda right to counsel for
interrogation regarding one offense, he may not be reapproached regarding any offense unless
counsel is present.” McNeil v. Wisconsin, 501 U.S. 171, 177 (1991) (emphasis in original).
A reinterrogation of the kind proscribed by Edwards is precisely what happened here.
Hendrix invoked his Fifth Amendment rights on September 6, 2006, shortly after making several
statements to the police. Detective Hogan nonetheless reapproached him two days later,
administered a new set of Miranda warnings, and resumed the interrogation, ostensibly with
Hendrix’s consent, although Hendrix refused to sign a new advice-of-rights form. Because these
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actions by Detective Hogan violated the Edwards rule against reinterrogation, the trial court
erred in admitting the testimony regarding Hendrix’s September 8 statements. Whether this error
was harmless is thus the dispositive question.
D. The erroneous admission of Hendrix’s September 8, 2006 statements was not
harmless; to the contrary, it had a substantial and injurious effect on his defense.
Not all constitutional errors that are brought to light on habeas review require reversal.
Jensen v. Romanowski, 590 F.3d 373, 379 (6th Cir. 2009) (“If the constitutional error had no
material effect, the verdict must stand.”). “Reviewing courts normally disregard trial errors that
are harmless.” O’Neal v. McAninch, 513 U.S. 432, 434 (1995). Harmlessness is determined
“under the ‘substantial and injurious effect’ standard.” Fry v. Pliler, 551 U.S. 112, 121 (2007).
The Supreme Court has purposefully framed this standard as a question to be answered by the
judge, who must ask himself or herself: “Do I, the judge, think that the error substantially
influenced the jury’s decision?” O’Neal, 513 U.S. at 436.
Under O’Neal, if the judge is certain that the error had no effect or only a small effect, the
verdict must stand. But if the judge “is in grave doubt about whether a trial error of federal law
had substantial and injurious effect or influence in determining the jury’s verdict, that error is not
harmless. And, the petitioner must win.” Id. at 436 (internal quotation marks omitted). The
term “‘grave doubt’ . . . mean[s] that, in the judge’s mind, the matter is so evenly balanced that
he feels himself in virtual equipoise as to the harmlessness of the error.” Id. at 435. An
“uncertain judge should treat the error, not as if it were harmless, but as if it affected the verdict.”
Id.
In conducting this inquiry, a court is prohibited from “‘stripping the erroneous action
from the whole’ and determining the sufficiency of what is left ‘standing alone.’” Ferensic v.
Birkett, 501 F.3d 469, 483 (6th Cir. 2007) (quoting Kotteakos v. United States, 328 U.S. 750, 765
(1946)). Instead, the court must view the circumstances through a “wider lens,” id., “pondering
all that happened,” Kotteakos, 328 U.S. at 765.
We agree with the district court’s determination that the admission of testimony
regarding Hendrix’s September 8 statements was not harmless, and instead was likely to have
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had a substantial and injurious effect on his defense. In closing arguments, the prosecutor
emphasized the significance of Hendrix’s September 8 statements, describing them as “more
important” than the September 6 statements because, by September 8, Hendrix had been
informed that a woman was seriously injured during the minivan’s theft, yet Hendrix still offered
no alibi. (Hendrix had in fact, by September 8, had two days to mull over this information.) The
prosecutor described Hendrix’s silence in the face of this information as “defining.” It “speaks a
thousand words,” he said, and is “like a thunderbolt from the sky” that says, “I did it.”
As Hendrix argues, his September 6 statements were not as inculpatory as his September
8 statements because, at the point on September 6 when he invoked his Miranda rights, the
police had not yet told him that a woman was seriously injured during the minivan’s theft. If
Hendrix did not commit the carjacking, then he presumably would have had no reason to know
that he was driving a vehicle connected with a potential homicide. He therefore would have had
less incentive to speak to the police about how he acquired the minivan. The police already
knew that he was in possession of a stolen vehicle, so with respect to that offense, he had little to
gain by providing more information. Moreover, if the September 8 statements had not been
admitted into evidence, then Hendrix could have explained his September 6 statements by saying
“I didn’t know how much trouble I was in.” The State’s case against Hendrix thus drew
substantial force from the argument that Hendrix knew on September 8 that he might be charged
with murder, yet he offered no alibi.
And what Hendrix did say during the September 8 interview further prejudiced his
defense. For one thing, Hendrix asked Detective Hogan if he would be charged with murder. He
thereby betrayed a kind of anxious curiosity that, absent a contemporaneous and persuasive
denial of responsibility, is suspicious. After asking this question, Hendrix ended the
interrogation, telling Detective Hogan: “I don’t think I’m going to say anymore, because . . . I
don’t want to get into anymore trouble.” This statement, too, tends to suggest an anxiety—if not
an expectation—that deeper trouble lay ahead.
Hendrix also told Detective Hogan that, on the day of the carjacking, he had been in
Sterling Heights and had made a phone call from a 7-Eleven store. He also said: “[J]ust check
with [the Detroit Police Department], they know the truth,” and “DPD knows, check their
Nos. 16-2279/2310 Hendrix v. Palmer Page 15
video.” These narrative fragments did nothing to aid Hendrix’s defense. Instead, they
presumably hurt his credibility because they appear to contradict each other. Sterling Heights,
after all, is not within the jurisdiction of the Detroit Police Department, so the Detroit police
would have had no reason to have a video of Hendrix if he actually had been in Sterling Heights
at the time of the carjacking. And conversely, if the Detroit Police Department did have a video
of Hendrix, then he was very unlikely to have been in Sterling Heights.
Hendrix’s statement that he called his grandmother from a 7-Eleven store was also
problematic for him because it was susceptible to being disproved. As the prosecutor pointed out
in his closing argument, the existence of a phone call could probably be confirmed with
telephone records, but Hendrix presented no such records. And Detective Hogan testified that he
had been unable to confirm that the 7-Eleven phone call actually occurred.
Viewed as a whole, Hendrix’s September 8 statements were inculpatory because of their
incoherence. They smack of nonsense. And what Hendrix did not say on September 8 was
inculpatory as well. His failure to muster a credible alibi when he knew the gravity of his
situation enabled the prosecutor to argue persuasively that Hendrix had no alibi because he was
guilty. The force of that argument, as well as the amount of time that the prosecutor spent
developing it in his closing argument, strongly supports the view that the erroneous admission of
the September 8 statements likely had a substantial and injurious effect on Hendrix’s defense.
For these reasons, we agree with the district court’s determination that the error of admitting the
September 8 statements was not harmless.
E. The failure of Hendrix’s trial counsel to challenge the admission of Hendrix’s
September 8 statements constituted ineffective assistance.
In Strickland v. Washington, 466 U.S. 668, 687 (1984), the Supreme Court summarized
the standard for determining whether counsel’s assistance was so defective as to require that a
conviction be reversed:
First, the defendant must show that counsel’s performance was deficient. This
requires showing that counsel made errors so serious that counsel was not
functioning as the “counsel” guaranteed the defendant by the Sixth Amendment.
Second, the defendant must show that the deficient performance prejudiced the
Nos. 16-2279/2310 Hendrix v. Palmer Page 16
defense. This requires showing that counsel’s errors were so serious as to deprive
the defendant of a fair trial, a trial whose result is reliable.
Whether counsel’s performance was “deficient” under the first prong is determined by
reference to “an objective standard of reasonableness”—specifically, “reasonableness under
prevailing professional norms.” Id. at 688. This inquiry “consider[s] all the circumstances” of a
particular case. Id. at 688–89. “Judicial scrutiny of counsel’s performance must be highly
deferential.” Id. at 689.
“A fair assessment of attorney performance requires that every effort be made to
eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel’s
challenged conduct, and to evaluate the conduct from counsel’s perspective at the time.” Id.
Further, “[b]ecause of the difficulties inherent in making the evaluation, a court must indulge a
strong presumption that counsel’s conduct falls within the wide range of reasonable professional
assistance; that is, the defendant must overcome the presumption that, under the circumstances,
the challenged action ‘might be considered sound trial strategy.’” Id. (quoting Michel v.
Louisiana, 350 U.S. 91, 101 (1955)).
As to the second prong of the Strickland test, a petitioner must “affirmatively prove
prejudice.” Strickland, 466 U.S. at 693. Counsel’s errors must have “actually had an adverse
effect on [the petitioner’s] defense.” Id.
AEDPA adds another layer of deference to our review. See 28 U.S.C. § 2254(d)(1). This
means that our review of the state court’s adjudication of Hendrix’s Strickland claim must be
“doubly deferential.” Knowles v. Mirzayance, 556 U.S. 111, 123 (2009). “The question ‘is not
whether a federal court believes the state court’s determination’ under Strickland ‘was
incorrect[,] but whether [that determination] was unreasonable—a substantially higher
threshold.’” Id. (quoting Schriro v. Landrigan, 550 U.S. 465, 473 (2007)). To qualify as
“unreasonable,” the state court’s adjudication of the claim must have been “so lacking in
justification” that it amounts to “an error well understood and comprehended in existing law
beyond any possibility for fairminded disagreement.” Harrington v. Richter, 562 U.S. 86, 103
(2011). With these principles in mind, we now apply the two prongs of the Strickland test to the
facts of this case.
Nos. 16-2279/2310 Hendrix v. Palmer Page 17
1. Counsel’s performance was deficient.
“[A] single, serious error may support a claim of ineffective assistance of counsel.”
Kimmelman v. Morrison, 477 U.S. 365, 383 (1986). Such an error can flow from a failure to file
a plainly meritorious motion to suppress. Id. at 375, 385. But “the failure to file a [meritorious]
suppression motion does not constitute per se ineffective assistance of counsel.” Id. at 384. For
such a failure to constitute deficient performance, the meritorious nature of the motion must be
so plain that “no competent attorney would think a motion to suppress would have failed.”
Premo v. Moore, 562 U.S. 115, 124 (2011). A petitioner also must show that counsel had no
reasonable strategic rationale for not filing the motion. Davis v. Lafler, 658 F.3d 525, 537 (6th
Cir. 2011) (en banc) (applying the rule from Strickland, 466 U.S. at 690–91, that “strategic
choices made after thorough investigation of law and facts relevant to plausible options are
virtually unchallengeable”).
In Poindexter v. Booker, 301 F. App’x 522, 529 (6th Cir. 2008), this court held that the
petitioner’s counsel provided ineffective assistance when he failed to interview two available
alibi witnesses. These witnesses had accompanied the petitioner to his meetings with counsel,
yet counsel never asked them any questions despite knowing that one of them had been with the
petitioner at the time of the shooting with which he was charged. Id. One of the alibi witnesses
went so far as to approach the petitioner’s counsel after these meetings, on his own initiative, to
express his willingness to testify on the petitioner’s behalf. Id. But counsel still did not
interview the witnesses, much less present them as witnesses at trial. Id. This court held that
counsel’s “[f]ailure to investigate two alibi witnesses, particularly when [they] both personally
offered to provide testimony beneficial to [the petitioner], is . . . objectively unreasonable” and
“not the product of sound trial strategy.” Id. Further, the Poindexter court held that the state
court’s contrary conclusion was an unreasonable application of Strickland. Id.
Hendrix’s counsel in the present case was similarly unreasonable in failing to move to
suppress the September 8 statements. The meritorious nature of a motion to suppress, under
these circumstances, is clear from blackletter law. See Edwards v. Arizona, 451 U.S. 477, 486
(1981); McNeil v. Wisconsin, 501 U.S. 171, 177 (1991). Hendrix’s counsel had access to all the
facts that should have led him to conclude that the September 8 statements were inadmissible,
Nos. 16-2279/2310 Hendrix v. Palmer Page 18
and not filing a motion to suppress had no conceivable strategic benefit for Hendrix because the
September 8 statements offered nothing in the way of an alibi. If anything, they created the
impression of a person unable to muster an innocent explanation for how he had acquired a
stolen vehicle. The statements also enabled the prosecution to tell the jury that Hendrix had
offered no alibi even after being informed that the vehicle was connected to a potential homicide.
See Franklin v. Anderson, 434 F.3d 412, 430–31 (6th Cir. 2006) (holding that “the failure to
raise the [meritorious] biased juror issue on appeal was prejudicial, since no claims of strategy
can excuse the seating of a juror unable to follow the law”).
This is not a situation where, for example, an attorney decided not to call a witness whom
he believed might expose his client to additional risks. See Davis, 658 F.3d at 537–38
(concluding that an attorney’s decision not to call his client’s codefendant as a witness had been
reasonable and strategic because the attorney did not want the jury to associate his client with
someone who had already pleaded guilty and who might invoke the Fifth Amendment to avoid
additional exposure). Rather, the failure of Hendrix’s counsel to file a motion to suppress
exposed Hendrix to adverse evidence that could have been avoided. Counsel’s inaction therefore
constituted deficient performance.
2. Counsel’s error prejudiced Hendrix’s defense.
The prejudice analysis is duplicative of the analysis previously conducted to determine if
the statements’ admission likely had a substantial and injurious effect on Hendrix’s defense.
This element is met as well, for all the same reasons.
Because counsel’s failure to file an indisputably meritorious motion constituted deficient
performance that prejudiced Hendrix’s defense, counsel rendered ineffective assistance. The
contrary decision of the Michigan Court of Appeals was unreasonable given the nature and effect
of the constitutional violation. Hendrix is therefore entitled to habeas relief on his Sixth
Amendment claim.
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F. The prosecutor’s comments on Hendrix’s post-Miranda silence violated due process.
Hendrix also urges us to overturn the district court’s holding that the prosecutor did not
violate Hendrix’s due-process rights by improperly commenting on his silence. Although the
Fifth and Sixth Amendment violations discussed above by themselves entitle Hendrix to relief,
we feel compelled to reach this due-process issue because it is likely to arise again if Hendrix is
retried.
The State’s position is that Hendrix did not remain silent after receiving his Miranda
warnings. He instead spoke with Sergeants Ferguson and Muszynski shortly after his arrest on
September 6, and he spoke with Detective Hogan on September 8. According to the State,
Hendrix’s decision to speak with the police entitled the prosecutor to comment on everything
that Hendrix did not say. The district court accepted this argument and concluded that the
prosecutor’s remarks were not improper. Hendrix v. Palmer, 205 F. Supp. 3d 895, 909 (E.D.
Mich. 2016).
In Doyle v. Ohio, 426 U.S. 610, 619 (1976), the Supreme Court held that the “use for
impeachment purposes of [a] petitioner[’s] silence . . . after receiving Miranda warnings[]
violate[s] the Due Process Clause of the Fourteenth Amendment.” Doyle therefore “bars the use
against a criminal defendant of silence maintained after receipt of governmental assurances.”
Anderson v. Charles, 447 U.S. 404, 408 (1980) (per curiam).
The State’s argument on this issue relies on Anderson. In Anderson, the defendant was
arrested while in possession of the murder victim’s car. 447 U.S. at 404. He waived his
Miranda rights and told the arresting officer that he had stolen the car from a specific area. Id. at
405. But at trial, the defendant changed his story, testifying that he had stolen the car from a
parking lot approximately two miles from the area that he had previously identified. The
prosecutor cross-examined the defendant about this discrepancy. Id. Critically, the prosecutor
did not question him about any omissions; the prosecutor simply elicited testimony designed to
highlight the discrepancy between the defendant’s statements. Id. at 405–06.
In a petition for a writ of habeas corpus, the defendant in Anderson argued that the
discrepancy resulted from omissions in his initial statement. Id. at 406–07. These omissions, the
Nos. 16-2279/2310 Hendrix v. Palmer Page 20
defendant argued, were tantamount to silence. Id. The Supreme Court rejected this argument,
explaining that “a defendant who voluntarily speaks after receiving Miranda warnings has not
been induced to remain silent. As to the subject matter of his statements, the defendant has not
remained silent at all.” Id. at 408. The Court thus held that when a defendant makes inconsistent
statements, his omission of facts from one statement (which facts he includes in a later
statement) does not constitute silence under Doyle. Id. at 409.
But Anderson does not suggest, as the district court seemed to believe, that Doyle is
inapplicable whenever a defendant chooses to speak; it simply teaches that “Doyle does not
apply to cross-examination that merely inquires into prior inconsistent statements.” Id. The
district court’s overestimation of Anderson’s breadth apparently resulted from a superficial
reading of this court’s decision in United States v. Crowder, 719 F.2d 166 (6th Cir. 1983) (en
banc). In rejecting Hendrix’s Doyle claim, the district court relied on Crowder’s remark that
“[t]he Doyle rule has no application unless the defendant has remained silent and could be
considered to have done so in reliance on the implied assurances of the Miranda warnings.”
Hendrix, 205 F. Supp. 3d at 909 (quoting Crowder, 719 F.2d at 172).
But the district court relied on this remark without appreciating that Crowder considered
Anderson’s significance under circumstances far different from those here. In Crowder, the
defendant received Miranda warnings from a Kentucky State Police officer who questioned him
at the crime scene, weeks before his arrest. 719 F.2d at 168. When the defendant was arrested
weeks later by a federal agent, he told the agent, “in effect, ‘I have told my story to the Kentucky
State Police and I am sticking to it.’” Id. at 171. The court determined that “[t]his was not a
claim of the right not to speak, but a reiteration [by the defendant] of his previous story.” Id. at
170. Accordingly, the court concluded that “[t]here was never any claim of the Fifth
Amendment privilege to remain silent.” Id. at 171. Because this court in Crowder concluded
that the defendant had never invoked his Miranda rights, it had no reason to highlight the nuance
in Anderson that a defendant may speak with law enforcement about one subject without waiving
his right to remain silent about other subjects.
The snippet from Crowder that “the Doyle rule has no application unless the defendant
has remained silent” is therefore unhelpful here because it is incomplete. See id. at 172. Taken
Nos. 16-2279/2310 Hendrix v. Palmer Page 21
out of context, this statement could suggest, as the district court apparently believed, that Doyle
goes out the window as soon as a defendant makes any post-Miranda statement. But that is not
the law. Although Anderson stated that “a defendant who voluntarily speaks after receiving
Miranda warnings has not been induced to remain silent,” it also explained that such a defendant
“has not remained silent” only “[a]s to the subject matter of his statements.” Anderson, 447 U.S.
at 408 (emphasis added). Doyle therefore continues to apply to subject matters on which the
defendant has remained silent. This is key. Under Anderson, a prosecutor is permitted to probe
inconsistencies between a defendant’s statements. But this does not give a prosecutor license to
attempt to “draw meaning from silence,” which Doyle and its progeny strictly forbid. Id. at 409.
Under Anderson, the crucial question is whether the prosecutor’s comments at trial were
“designed to draw meaning from silence,” which is constitutionally prohibited, or whether they
sought to “elicit an explanation for the prior inconsistent statement,” which is permissible. Id. at
409; see also United States v. Caruto, 532 F.3d 822, 830 (9th Cir. 2008) (“[T]he primary inquiry
in cases where a defendant waives his or her Miranda rights is whether the prosecutor’s question
or argument is ‘designed to draw meaning from silence’ or instead merely ‘to elicit an
explanation for a prior inconsistent statement.’” (quoting Anderson, 447 U.S. at 409)).
Accordingly, “even if a defendant has made statements to the police after receiving Miranda
warnings, he is deemed to have maintained his silence, unless the post-arrest statements are
inconsistent with the defendant’s testimony at trial.” United States v. Casamento, 887 F.2d
1141, 1179 (2d Cir. 1989).
The Ninth Circuit’s decision in Caruto clearly illustrates the distinction between
exploring prior inconsistent statements and inviting the jury to derive meaning from the
defendant’s silence. In Caruto, the defendant was arrested for importing cocaine, which had
been concealed in the gas tank of her pickup truck. 532 F.3d at 824. The defendant briefly
spoke with federal agents at the time of her arrest, but she then invoked her Miranda rights,
cutting the interview short. Id. At trial, the defendant testified to facts that she had not
previously divulged. Id. The prosecution, on cross-examination, sought to impeach her based on
“what she did not say” in her initial interview. Id. at 830. This put the defendant in a bind
because she “could not fully explain why her post-arrest statement was not as detailed as her
Nos. 16-2279/2310 Hendrix v. Palmer Page 22
testimony at trial without disclosing that she had invoked her Miranda rights.” Id. Moreover,
the prosecution’s closing argument focused on the defendant’s “failure to explain further what
had happened” at the time of her arrest, emphasizing all that she “didn’t say.” Id. at 826–27,
830. These comments, the court concluded, “invited the jury to draw meaning from silence”—
precisely “the type of penalty for exercising one’s Fifth Amendment rights that Doyle prohibits.”
Id. at 830–31.
This court found a Doyle violation under similar circumstances in Gravley v. Mills, 87
F.3d 779, 786 (6th Cir. 1996). Gravley was charged with burglary and sexual assault. Id. at
783–84. Shortly after his arrest, Gravley told a detective “that he had never seen [the victim]
before she identified him” outside her apartment. Id. at 783. Gravley declined to be interviewed,
however, when the same detective approached him again four days later. Id. During the
prosecution’s case in chief, it introduced evidence of Gravley’s initial statement and of his
subsequent silence. Id. at 787–88. When Gravley later took the stand, he testified that the victim
had willingly admitted him into her apartment and that they had engaged in consensual sex. Id.
at 783. He further testified that he did not provide this account during his initial interview
because he had been “tired, scared and hung over.” Id. at 784. When cross-examining Gravley,
the prosecutor “made references to the fact that Gravley had remained silent on various
occasions after his arrest.” Id. at 787. The prosecutor also “returned to the subject of Gravley’s
post-Miranda silence in his final argument.” Id. at 788.
On appeal, Gravley argued that the prosecution’s references to his post-Miranda silence
violated his due-process rights. This court agreed. Id. at 787. It determined that the prosecutor
“first erred when he introduced into the state’s case in chief, prior to any testimony from
Gravley, substantive evidence that Gravley chose to remain silent on the second occasion that he
was interrogated by police.” Id. The court also concluded that “the prosecutor’s cross-
examination of Gravley went far beyond calling the jury’s attention to [any] inconsistency” in
the defendant’s statements, and that the prosecutor’s statements in closing argument were
likewise improper. Id. at 787–88. From the prosecutor’s conduct, the court inferred that his
“clear intent was to persuade the jury that if Gravley’s trial testimony had indeed been true, he
would have come forward earlier with his story.” Id. at 787. The court therefore concluded that,
Nos. 16-2279/2310 Hendrix v. Palmer Page 23
by “repeatedly driving home references to Gravley’s silence and implying that such silence was
evidence that Gravley was lying,” “the prosecutor crossed the line” and struck “a ‘foul’ blow that
amounted to blatant and egregious Doyle error.” Id. at 788–89 (quoting Berger v. United States,
295 U.S. 78, 88 (1935)).
The conduct of the prosecutor in the present case was just as violative of Doyle. During
the State’s case in chief, the prosecutor repeatedly invited Detective Hogan to comment on
Hendrix’s silence:
Q Now, as a detective, would you expect such a suspect knowing that the
victim might die, to explain how he gained possession of the vehicle, if
he’s not the thief?
A Okay. If he’s not the thief, yes.
Q Why would you expect him to tell you how he gained the vehicle if he’s
not the thief?
A If he’s not the thief, then he’s not the one that pushed the woman out of
the car, he doesn’t want to be blamed for the assault.
Q Do you find it noteworthy in any way that he refused to tell you where he
was on September 5, 2006, at 6:45 p.m. or thereabouts?
A Yes.
Q Why is it noteworthy?
A Because I think he’s afraid to admit that he’s the one that actually pushed
Mrs. Doen out of the vehicle.
These questions invited Detective Hogan to derive meaning from Hendrix’s silence for
the purpose of encouraging the jury to do the same. The prosecutor then elicited from Detective
Hogan a tedious account of all that Hendrix did not say, making the prosecutor’s improper intent
even more obvious:
Q But, in a more general sense, if he had an alibi, somebody who could say
he was with me at a restaurant and here are the receipts, would you expect
him to tell you that?
A Yes. He would want me to know that.
Q If he had been with his mother, grandmother, would you expect him to tell
you that?
A I would expect that.
Nos. 16-2279/2310 Hendrix v. Palmer Page 24
Q So, what does it tell you as a detective that he didn’t give you any
information about his whereabouts at the time of the carjacking?
A He does not want me to know where he was.
Q Now, sir, did he explain to you how he gained possession of the Caravan?
A No.
Q Did he say he bought it from a crack addict?
A No.
Q Did he say he found it abandoned on the street?
A No.
Q Did he say he found it abandoned on a highway?
A No.
Q Did he say it was a gift?
A No.
Q Any explanation other than being the thief?
A No.
Q If he’s not the thief, would you expect him to tell you that?
A Yes.
Q Why?
A If he’s not the thief, he’s not going to want to be charged with a crime of
that type of nature.
In his closing argument, the prosecutor again returned to the theme of Hendrix’s silence,
repeatedly and explicitly inviting the jury to find it inculpatory:
There is no doubt in this world that if [Hendrix] had an explanation for where he
was at that time, on that day, we would know it. He would have told Sergeant
Ferguson, and if not Sergeant Ferguson, he would have told Detective Hogan.
When he can’t tell where he is, what does that mean?
And again:
If you’re not the person who took the car at Vineyards, you’re going to be
clambering [sic], be wailing. Detective, let me tell you what happened. This is
how I got the car, Detective. I didn’t want to say anything before, but here’s how
it happened. Never. Not one word. He says, oh, I don’t want to say anymore,
because it will get me into trouble.
Nos. 16-2279/2310 Hendrix v. Palmer Page 25
And still again:
[T]he Defendant had an opportunity to tell us what happened on September 6 and
September 8 and he didn’t. His silence is defining, his silence speaks a thousand
words. His silence in refusing to say from where he made the call, how he
obtained the vehicle, and who he was with during the important times. That’s like
a thunderbolt from the sky. In other words, he’s saying, I did it.
These remarks plainly invited the jury to infer Hendrix’s guilt from his silence. The
State’s attempt to recharacterize them as somehow not relating to Hendrix’s silence is totally
disingenuous. Collectively, the prosecutor’s questions when examining Detective Hogan and his
remarks during closing argument reflect an intent to encourage the jury to derive meaning from
Hendrix’s silence, all in violation of Anderson. See 447 U.S. at 409. This misconduct “so
infected the trial with unfairness as to make the resulting conviction a denial of due process.”
See Darden v. Wainwright, 477 U.S. 168, 181 (1986) (quoting Donnelly v. DeChristoforo,
416 U.S. 637, 643 (1974)). The Michigan appellate courts’ rejection of this claim is contrary to
clearly established Supreme Court law. See 28 U.S.C. § 2254(d)(1). Hendrix is therefore
entitled to relief on the basis of his Doyle claim.
G. The evidence presented at trial was sufficient to support Hendrix’s conviction.
We now turn to the sufficiency of the evidence presented at trial. This issue is critical
because, in order for Hendrix to be retried, the evidence presented must have been sufficient to
support his conviction. See Burks v. United States, 437 U.S. 1, 18 (1978) (“[W]e hold today that
the Double Jeopardy Clause precludes a second trial once the reviewing court has found the
evidence legally insufficient . . . .”). Hendrix specifically challenges the sufficiency of the
evidence presented to identify him as the carjacker.
“[T]he Due Process Clause protects the accused against conviction except upon proof
beyond a reasonable doubt of every fact necessary to constitute the crime with which he is
charged.” In re Winship, 397 U.S. 358, 364 (1970). On direct review, an appellate court must
ask “whether, after viewing the evidence in the light most favorable to the prosecution, any
rational trier of fact could have found the essential elements of the crime beyond a reasonable
doubt.” Jackson v. Virginia, 443 U.S. 307, 319 (1979) (emphasis in original).
Nos. 16-2279/2310 Hendrix v. Palmer Page 26
Another layer of deference applies, moreover, in the habeas context. McGuire v. Ohio,
619 F.3d 623, 631 (6th Cir. 2010). After assessing whether any rational factfinder could have
found the crime’s essential elements beyond a reasonable doubt, the court “must still defer to the
state appellate court’s sufficiency determination as long as it is not unreasonable.” Brown v.
Konteh, 567 F.3d 191, 205 (6th Cir. 2009) (emphasis in original). State courts are afforded
“considerable leeway” in their sufficiency analyses. Davis v. Lafler, 658 F.3d 525, 535 (6th Cir.
2011).
An additional wrinkle concerns the role of erroneously admitted evidence in the
sufficiency-of-the-evidence calculus—here, Hendrix’s September 8 statements. A reviewing
court “may consider the erroneously admitted testimony, as well as the properly admitted
evidence, in reviewing the sufficiency of the evidence.” United States v. Quinn, 901 F.2d 522,
530 (6th Cir. 1990) (citing Lockhart v. Nelson, 488 U.S. 33 (1988)). This is because “[i]t is
impossible to know what additional evidence the government might have produced had the
faulty evidence been excluded at trial, or what theory the government might have pursued had
the evidence before the jury been different,” and because “[i]t would prolong trials unduly to
adopt a rule that would require the government to introduce all available evidence and assert
every possible legal theory in anticipation of reversal of trial court rulings admitting evidence.”
Id. at 531 (quoting United States v. Harmon, 632 F.2d 812, 814 (9th Cir. 1980) (per curiam)).
In the present case, the Michigan Court of Appeals reasonably held that a rational
factfinder could have found Hendrix guilty beyond a reasonable doubt. Perhaps most probative
of Hendrix’s guilt are the similarities between the carjacking of Gina Doen’s Dodge Caravan and
several prior vehicle thefts that Hendrix is known to have committed. These similarities include
the area and method of the carjacking; the fact that Hendrix had previously stolen a pickup truck
even as its owner clung to a door before being thrown off onto the pavement; the fact that
Hendrix was found sitting in the Caravan in the same Detroit neighborhood, far from his
residence, to which he had recently driven two other stolen vehicles; and the testimony that drug
addiction could explain Hendrix’s modus operandi.
All of this evidence supports the conclusion that Hendrix was the carjacker in this case.
Hendrix’s implausible statement on September 6 that he did not know how he acquired the
Nos. 16-2279/2310 Hendrix v. Palmer Page 27
Caravan, and his continued refusal on September 8 to explain how he acquired it, even after
being told that a woman had been critically injured during its theft, further support the
conclusion that Hendrix committed the carjacking. (Of course, Hendrix’s September 8
statements were improperly admitted, see supra at 12–13, but, as noted above, they may still be
considered for sufficiency purposes.) The Michigan Court of Appeals’ decision that the
evidence was sufficient to support Hendrix’s conviction was therefore not unreasonable, as the
district court correctly held. See 28 U.S.C. § 2254(d)(1).
Sufficient evidence to convict, of course, does not excuse the constitutional violations set
forth above. See Quinn, 901 F.2d at 531–32 (reversing the defendant’s conviction and
remanding for a new trial where the evidence was sufficient to support the defendant’s
conviction, but the proceedings had been tainted by a violation of the Confrontation Clause).
But because Hendrix’s conviction is supported by sufficient evidence, he may be retried.
III. CONCLUSION
For all of the reasons set forth above, we (1) AFFIRM the judgment of the district court
granting Hendrix habeas relief based on his Fifth and Sixth Amendment claims; (2) REVERSE
the district court’s denial of Hendrix’s Doyle claim; and (3) AFFIRM the holding of the district
court that the evidence was sufficient to support Hendrix’s conviction. Hendrix is therefore
entitled to the habeas relief granted by the district court, but the State is entitled to retry him if it
so desires, subject to the time constraint imposed by the district court.