Davie v. Mitchell

R. GUY COLE, JR., Circuit Judge,

concurring.

I.

The Supreme Court has noted that: [ejxpanded concepts of fairness in obtaining confessions have been accompanied by a correspondingly greater complexity in determining whether an accused’s will has been overborne [ — Jfacts are frequently disputed, questions of credibility are often crucial, and inferences to be drawn from established facts are often determinative. The overall determination of the volun-tariness of a confession has thus become an exceedingly sensitive task, one that requires facing the issue squarely, in illuminating isolation and unbeclouded by other issues and the effect of extraneous but prejudicial evidence.

Jackson v. Denno, 378 U.S. 368, 390-91, 84 S.Ct. 1774, 12 L.Ed.2d 908 (1964) (internal citations omitted). This case, which turns on the facts surrounding Davie’s confession, is a perfect example of this complexity. After much deliberation, I concur in the lead opinion’s conclusion that Davie’s appeal does not warrant habeas relief.

II. BACKGROUND

Because Davie filed his habeas petition after the passage of the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), Pub.L. No. 104-132, 110 Stat. 1214, we review his claims to determine whether the “state court’s application of clearly established federal law was objectively unreasonable.” Williams v. Taylor, 529 U.S. 362, 409, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000). In so doing, we rely on the Ohio Supreme Court’s determination of the facts as set forth in State v. Davie, 80 Ohio St.3d 311, 686 N.E.2d 245 (Ohio 1997). Further, we apply AEDPA deference to the state courts’ determinations regarding the merits of the claim, but we review de novo all issues not reached by the state courts. Williams v. Anderson, 460 F.3d 789, 804 (6th Cir.2006).

Given the long procedural history of this case and the thorough factual background set forth in the 1997 Ohio Supreme Court opinion, I will not rehash the details of Davie’s crimes, but the relevant facts surrounding Davie’s confession follow.

A. Davie’s Confession

1. 8:30 a.m. — The Arrest

At 8:30 a.m. on the day of the VCA murders, the Warren Municipal Court chief bailiff, Carl Miller, received a phone call from Dwayne “Styx” Thomas, an informant who identified Davie as the individual responsible for the crimes. Miller and the Warren Police Captain, Timothy Downs, proceeded to the address Styx had given them, where they arrested Davie and advised him of his Miranda rights. Davie acknowledged his understanding of the rights, but he refused to sign a waiver of those rights.

2. 9:05 a.m.- — The Initial Questioning

Upon arriving at the police station at approximately 9:05 a.m., Captain Downs placed Davie in an interrogation room and asked Lt. Carl Blevins to question him. Blevins and Detective Morris Hill entered the interrogation room and re-read Davie his Miranda rights. The officers showed him a written form presenting those rights. Davie initialed the form on each line, indicating he understood his rights, but, again, refused to sign the waiver. At that point, the officers performed an atom*319ic absorption test on Davie’s hands, but they did not question him further. Davie neither requested an attorney nor invoked his right to remain silent.

3. 9:59 a.m. — The Second Interrogation

At 9:59 a.m., Downs and Blevins reentered the interrogation room, informed Davie that they would be recording the interview, and read Davie his Miranda rights again. For a third time, Davie indicated that he understood his rights. This time, however, he informed the officers that he did not want to make a statement:

Blevins: Do you not wish to make a statement or anything at this time.
Davie: Doesn’t matter to me.
Blevins: I heard you refuse.
Davie: I didn’t refuse[;] you said I didn’t have to if I didn’t want to.
Blevins: Do you wish to make a statement yes or no.
Davie: No statement.
Blevins: You wish not to make a statement.
Davie: Right.
Blevins. Okay that’s fine ... this interview is now completed....

(Joint Appendix (“JA”) 2018-20, partial transcript of taped interview with Davie at 9:59 on June 27, 1991.) At that point, the officers ended the interview and transported Davie to a jail cell. Davie never asked to speak to an attorney.

Shortly after the officers had finished the second interrogation, Detective Sines called the Trumbull County Prosecutor, Dennis Watkins, to ask him for his legal advice on how the officers could proceed in questioning Davie, if at all. The prosecutor advised Sines that “as long as Davie did not refuse to speak and did not demand an attorney, the officers could talk to him, provided that Davie acknowledged that he understood his rights.” Davie, 686 N.E.2d at 256.

J. 12:15 p.m.- — -The Third Interrogation

Given Watkins’s advice, at approximately 12:15 p.m., Detective Sines and Detective Sergeant Gary Vingle requested that Davie be brought from his jail cell for interrogation. Davie agreed to talk to the officers and was escorted to the interrogation room. There, the officers re-advised him of his Miranda rights and told him that the interview would be recorded. Da-vie again initialed each sentence of the constitutional rights form except for the waiver of rights and indicated that he understood. As before, Davie did not request a lawyer and willingly spoke to the detectives.

The following exchange then occurred:
Sines: Do you want to sign your name here that you understand that?
Davie: Well I’m not signing the waiver of rights. I didn’t sign it earlier.
Sines: Okay, okay. You can take it, go ahead. He didn’t sign it.
Vingle: Would you be willing to answer some of our questions if we ask you some, you know you [sic]?
Davie: Yes.

(JA 2021.) As the officers proceeded with the interview, Davie told them that although he did not remember being around the VCA that morning, he remembered having his gun with him. He then described the gun and informed them that he always carried one. When, at about 12:35 p.m., Davie told the officers he could not remember anything else about the incident and no longer wished to speak with them, the officers terminated the interview and Davie was returned to his jail cell.

*3205. 2: 00 p.m. — The Confession

At 2:00 p.m. that same afternoon, Sergeant Massucci went to the cell to take photographs of Davie. Davie asked Mas-succi if he could make a phone call, and Massucci granted his request. Davie called his girlfriend, Sonya Barnes, who apparently told him that she and Davie were being discussed in the local media. When Davie went back to his cell, he told Massucci that he wanted to talk to Vingle to discuss what was being released to the media and to determine what information Styx had given the police that morning.

Davie was subsequently brought from his cell to the interrogation room where Vingle and Sines re-advised him of his Miranda rights. For a third time, Davie initialed a constitutional rights form provided by the officers, indicating that he understood his rights, and signed the form. Although Davie once again refused to sign the waiver, he explicitly stated that he agreed to talk to the officers, and he did not ask to speak to an attorney.

Vingle: Do you want to acknowledge this that you have been given your rights again? Do you understand this one too, do you want to initial that one?
Davie: It don’t matter, do it.
Sines: Any particular reason why, you just don’t want to initial that part?
Davie: Right.
Sines: Are you still willing to talk to us?
Davie: Right.
Sines: Okay.
Vingle: Okay, this has been building up?
Davie: I don’t know, I just flipped out this morning.
Vingle: Tell us what happened, tell us.
Davie: I mean, it’s evident what happened.
Sines: We have an idea what happened but we would like to hear from you what happened, just to verify what we got.
Davie: I went down to the VCA and shot ‘em up.

(JA at 866-67.) Davie then asked the officers to type up his statement because he did not want to have to confess again. Once the tape was transcribed, Davie signed or initialed each page of the transcript.

On a motion to suppress filed by Davie’s appointed counsel, the trial court found Davie’s 2:00 p.m. confession to be admissible. The court reasoned that despite Da-vie’s failure to initial the waiver-of-rights portion of the form, he had impliedly waived his right to remain silent during both the 12:15 p.m. and the 2:00 p.m. interrogations, and that Davie had initiated the 2:00 p.m. interrogation that ultimately led to his confession. Davie, 686 N.E.2d at 256-57.

III. ANALYSIS

Despite some misgivings surrounding the somewhat questionable police conduct at issue in the case, I join in the lead opinion’s conclusion that the trial court did not err in admitting Davie’s confession. Though the officers questioned Davie four separate times over the course of approximately six hours, the trial court correctly determined that they respected Davie’s rights under Miranda, Mosley, Edwards, and their progeny. Further, I agree with the lead opinion’s conclusion that Davie himself initiated the 2:00 p.m. interrogation during which he ultimately confessed.

A. Voluntariness

The test for the voluntariness of a defendant’s confession is whether, under the totality of the circumstances, the government obtained a statement by coercion or *321improper inducement. Haynes v. Washington, 373 U.S. 503, 83 S.Ct. 1336, 10 L.Ed.2d 513 (1963). A factual inquiry into the voluntariness of the statement should focus on the conduct of the law enforcement officers involved. Mincey v. Arizona, 437 U.S. 385, 98 S.Ct. 2408, 57 L.Ed.2d 290 (1978).

In Michigan v. Mosley, 423 U.S. 96, 104, 96 S.Ct. 321, 46 L.Ed.2d 313 (1975), the Supreme Court clarified that the admissibility of statements obtained after a person in custody decides to remain silent depends on whether the police “scrupulously honored” his right to cut off questioning should they renew interrogation. Mosley requires an examination of whether the officers’ conduct demonstrates a failure to respect the defendant’s right to end questioning, thereby indicating an “effort [ ] to wear down [the defendant’s] resistance and make him change his mind,” id. at 105-06, 96 S.Ct. 321, and prescribes several factors relevant to the determination: (1) the amount of time that lapsed between interrogations; (2) the scope of the second interrogation; (3) whether new Miranda warnings were given; and (4) the degree to which police officers pursued further interrogation once the suspect invoked his right to silence. Id. Although these factors are not intended to be a per se test, courts use them in considering whether, in the totality of the circumstances, admission of a defendant’s incriminating statements violates Miranda. Id. at 103-05, 96 S.Ct. 321. In Edwards v. Arizona, 451 U.S. 477, 485, 101 S.Ct. 1880, 68 L.Ed.2d 378 (1981), the Supreme Court added another aspect to the analysis, holding that if an accused requests counsel, the police must cease all questioning “unless the accused himself initiates further communication, exchanges or conversations with [them].”

Viewing the facts through the lens of the Mosley factors, I agree that the officers questioning Davie honored his right to remain silent. The police re-Mirandized Davie before each of the four interrogations, including the interrogation in which Davie ultimately confessed. Moreover, during the 9:05 a.m., 12:15 p.m. and 2:00 p.m. interrogations, Davie initialed and signed a form indicating that he understood his rights. Further, Davie never asked for an attorney, and the transcripts demonstrate that the police stopped questioning him when he refused to make a statement.

Though the dissent argues that the officers did not wait long enough between their interrogations, I find that the timing was not unreasonable under the circumstances.1 Although only about five hours passed between the first, second, and third interrogations, “[t]he courts have generally rejected a per se rule as to when a suspect must be re[-]advised of his rights after the passage of time or a change in questioners.... In fact, a number of circuits have ruled that re-warning is not required simply because time has elapsed.” United States v. Weekley, 130 F.3d 747, 751 (6th Cir.1997); Evans v. McCotter, 790 F.2d 1232, 1237-38 (5th Cir.1986) (defendant voluntarily waived his rights where he was *322twice advised of his rights over the course of a three-hour period, notwithstanding a change in interview locations). Where the officers consistently read Davie his rights prior to interrogating him and in all instances, respected Davie’s request to end the questioning, the officers were not acting outside the bounds of what have been deemed appropriate methods of interrogation. Further, Davie’s case is wholly incomparable to the types of extreme physical and psychological coercion suffered by other defendants. Compare Beecher v. Alabama, 389 U.S. 35, 38, 88 S.Ct. 189, 19 L.Ed.2d 35 (1967) (holding confession to be involuntary where officers already having wounded the defendant, ordered defendant at gunpoint to confess or be killed), Davis v. North Carolina, 384 U.S. 737, 745-47, 86 S.Ct. 1761, 16 L.Ed.2d 895 (1966) (confession found involuntary where officers interrogated the defendant over sixteen days and held him incommunicado in a closed cell without windows and with limited food), and United States v. Anderson, 929 F.2d 96, 100 (2d Cir.1991) (confession coerced when officers told suspect he could either have an attorney present during questioning or cooperate with the government).

The fact that the officers focused each of their interrogations on the issue of what occurred at the VCA does not change my analysis because “a second interrogation is not rendered unconstitutional simply because it involves the same subject matter discussed during the first interview.” United States v. House, 939 F.2d 659, 662 (8th Cir.1991); see also Hatley v. Lock-hart, 990 F.2d 1070 (8th Cir.1993) (the fact that a second interrogation of defendant involved the same subject matter as the first did not violate defendant’s rights where there was no effort to wear down the resistance, and the police had not recontacted him with the sole purpose of trying to induce him to abandon his earlier silence); United States v. Hsu, 852 F.2d 407, 412 (9th Cir.1988) (questioning defendant about the same crime does not of itself prove bad faith or undue pressure on the part of the police); but see Charles v. Smith, 894 F.2d 718, 726 (5th Cir.1990) (.Mosley violated where same officer questioned defendant about same crime “just a few minutes after” he had invoked his right to silence). Moreover, as to the actual confession, a defendant can waive an invocation of his earlier right to remain silent by subsequently making a voluntary statement to the police. See, e.g., North Carolina v. Butler, 441 U.S. 369, 374-75, 99 S.Ct. 1755, 60 L.Ed.2d 286 (1979) (waiver may be inferred from particular facts and circumstances surrounding the case); United States v. Kaufman, 92 Fed.Appx. 253, 255-56 (6th Cir.2004) (no Miranda violation where defendant refused to sign a waiver form but freely spoke to the police after being advised of his Miranda rights); United States v. Miggins, 302 F.3d 384, 397 (6th Cir.2002) (written waiver unnecessary to establish knowing, intelligent and voluntary waiver of Miranda rights); Henderson v. Singletary, 968 F.2d 1070, 1073-74 (11th Cir.1992) (finding that officer’s three separate attempts to clarify whether a defendant intended to cut off questioning did not violate the defendant’s constitutional rights).

Finally, Davie’s personal characteristics' — including his age, education, intelligence, and prior experience with the police — all point to a voluntary confession. See Jackson v. McKee, 525 F.3d 430, 434 (6th Cir.2008) (citing Schneckloth v. Bustamonte, 412 U.S. 218, 226, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973)). Davie grew up in a relatively stable and supportive home environment, attended school until his expulsion at age sixteen, and, though he has some cognitive and psychological problems, he was unaffected by any severe *323mental deficiencies. Davie, 686 N.E.2d at 265-66.

It is notable, moreover, that Sines contacted the county prosecutor to ensure that his questioning of Davie was within the bounds of the law. I do not share the dissent’s view that the phone call to the prosecutor evidences an effort by Sines to ignore Davie’s refusal to waive his rights in order to continue the interrogation. On the contrary, I view the call as an indication that Sines was conscious of not overstepping Davie’s rights by continuing to question Davie after his refusals to waive his rights during the first and second interrogations. Sines clearly knew that a thin line exists between proper questioning of defendants and coercive tactics, and I believe, absent evidence to the contrary, that he was taking steps to guarantee that he did not cross that line.

B. Initiation

Davie’s assertion that his statements were involuntary is further undermined by the fact that he — not the officers — initiated the 2:00 p.m. encounter during which he ultimately confessed. This Court has determined that “initiation occurs when, without influence by the authorities, the suspect shows a willingness and a desire to talk generally about his case.” United States v. Whaley, 13 F.3d 963, 966-67 (6th Cir.1994) (citing Oregon v. Bradshaw, 462 U.S. 1039, 103 S.Ct. 2830, 77 L.Ed.2d 405 (1983) (holding that a defendant can negate his earlier invocation of his Miranda rights by initiating a conversation)). Moreover, some courts have found that the requirement that a “significant period” of time pass between a defendant’s invocation of his right to silence and a second round of questioning is not applicable to a situation in which the police discontinue questioning and the defendant subsequently initiates a confession. See, e.g., Henderson, 968 F.2d at 1071 (“It does not make sense to apply the same time standard to situations in which the defendant controls the time period between the end of police questioning and the start of a defendant-initiated confession.”); United States v. Alexander, 447 F.3d 1290, 1294 (10th Cir.2006) (Mosley time limits inapplicable “if the suspect, and not the police, reinitiates contact and agrees to questioning”).

The facts suggest that Vingle interrogated Davie at 2:00 p.m. because Davie wanted to talk. Around 2:00 p.m., when Mas-succi was photographing Davie in his cell, Davie asked Massucci if he could make a phone call, a request Massucci granted. In talking to Barnes, Davie apparently learned that the media was covering the morning’s events occurring at the VCA, and at that point, he requested to meet with Vingle. Vingle complied, the officers re-Mirandized Davie, and Davie confessed. Nothing about this encounter leads me to conclude that the police broke Da-vie’s will to force his ultimate confession.

C. Conclusion

The principle that a person’s rights are violated when police coerce an involuntary confession from him, truthful or otherwise, through physical or psychological methods designed to overbear his will is fundamental to our justice system. See Blackburn v. Alabama, 361 U.S. 199, 206, 80 S.Ct. 274, 4 L.Ed.2d 242 (1960) (“coercion can be mental as well as physical ... the blood of the accused is not the only hallmark of an unconstitutional inquisition”). Based on this principle, the Supreme Court has long held that certain interrogation techniques, either in isolation or as applied to the unique characteristics of a particular suspect, are so offensive to a civilized system of justice that they must be condemned under the Due Process Clause of the Four*324teenth Amendment. See Brown v. Mississippi, 297 U.S. 278, 286-87, 56 S.Ct. 461, 80 L.Ed. 682 (1936). Though the police’s continual questioning of Davie may toe the line of what is reasonable behavior by law enforcement, I agree that the trial court’s decision to admit his confession at trial was reasonable under the circumstances and find that an affirmance of the district court’s denial of habeas is appropriate here.

. I believe that the short passage of time between the 9:05 a.m. and the 9:59 a.m. interrogations is counter-balanced by the fact that the officers re-read Davie his Miranda rights and immediately ended the interrogations following Davie's requests. Moreover, other courts have found the passage of even shorter periods to have been reasonable in the face of the other Mosley factors. See United States ex rel. Patton v. Thieret, 791 F.2d 543, 547-48 (7th Cir.1986) (finding that the passage of forty minutes does not require that the police re-Mirandize defendant); Mills v. Commonwealth of Kentucky, 996 S.W.2d 473, 480-83 (Ky.1999) (10-20 minute interval between interrogations "concerned” the court, but was found long enough under the circumstances).