United States Court of Appeals
For the First Circuit
No. 02-1352
STEVEN JAMES,
Petitioner, Appellant,
v.
JOHN MARSHALL,
Respondent, Appellee.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Rya W. Zobel, U.S. District Judge]
Before
Lynch, Circuit Judge,
Bownes, Senior Circuit Judge,
and Lipez, Circuit Judge.
Robert L. Sheketoff, for appellant.
Thomas F. Reilly, Attorney General, with whom Jame J. Arguin,
Assistant Attorney General, for appellee.
March 14, 2003
LIPEZ, Circuit Judge. After a Massachusetts Superior
Court jury convicted Steven James of first degree murder and
related assault charges for the 1994 death of Edward Sullivan, he
was sentenced to mandatory life imprisonment. The Massachusetts
Supreme Judicial Court (SJC) affirmed the convictions. James then
petitioned the federal district court for habeas corpus relief
under 28 U.S.C. § 2254, challenging the admissibility of his
videotaped confession. The district court denied James's petition.
We affirm.
I.
In its opinion on James's direct appeal, the SJC
summarized the important facts. Commonwealth v. James, 693 N.E.2d
148, 150 (Mass. 1998). James and some friends were in a parking
lot of a sandwich shop in Rockland, Massachusetts. Some distance
away, near a van belonging to the victim, an argument began between
Sullivan and Steven DiRenzo, another of James's friends. The
victim took a baseball bat out of his van and used it to fend off
DiRenzo, but did not actually swing it. DiRenzo then called to
James who, with several of their other friends, ran toward the van
and began taunting Sullivan. The victim fell, dropped the bat and
lay motionless on his stomach as six or seven people repeatedly hit
and kicked him. Throughout the beating, he asked them to stop and
made no attempt to fight back. James picked up the bat and swung it
three times at Sullivan's head, crushing his skull and lacerating
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his brain. The unconscious victim was taken to a hospital, where
he died two days later as a result of head injuries.
Shortly after the fight in the parking lot, James
telephoned the Rockland police, stated that he thought he might
have killed someone with a baseball bat, and arranged to meet a
police officer at the scene of the fight. There, after a reading
of his Miranda rights, which he confirmed that he understood, he
was arrested and taken to the Rockland police station. At the
police station Sergeant Richard Craig read James his Miranda rights
a second time before asking him if he was willing to talk about the
fight. James indicated that he was. Sergeant Craig brought him to
a conference room and asked him if he could videotape the
interview. James replied "sure" and said that he had "no problem"
with that. The interview then began:
Craig: - 1994 and it's 11:22 p.m. I'm
Detective Sergeant Richard Craig.
Videotaping this is PCI Peter Curry.
It's an inteview with Steven James.
James: Yeah.
Craig: Steven, I'm going to give you some
rights. And first I'd like to inform
you that this is being videotaped. You
have the right to remain silent.
Anything you say can and will be used
against you in a court of law. You
have the right to an attorney. If you
can't afford an attorney one will be
appointed for you by the Commonwealth.
Do you understand these rights?
James: Yes.
Craig: Do you wish to make a statement at this
time?
James: Nope.
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Craig: Okay. Can I talk to you about what
happened earlier tonight?
James: Yup.
James cooperated fully throughout the interview, was forthcoming
with information and, on one occasion, paused to ask Sergeant
Craig, who was taking notes, if he was speaking too quickly. At
the end of the interview, Sergeant Craig asked James to review his
notes, make any changes that he wanted, and sign them if he thought
they were a fair and accurate representation of the interview.
James signed each page without making any objections or
modifications.
James moved to suppress admission of the videotape,
arguing that the interview should have been terminated immediately
following his answer of "Nope" to Sergeant Craig's question about
whether he wanted to make a statement. The trial court disagreed,
finding that "Nope" did not signal the invocation of his right to
remain silent: "I find that the 'no' [sic] response, as
demonstrated by the video, was one of semantics and that he was
distinguishing between reciting a formal statement and his
willingness to answer questions put to him by Craig." On direct
appeal, the SJC agreed with this determination.
James then filed a timely habeas petition in the district
court for the District of Massachusetts, asserting that the
admission of his videotaped interview violated his Fourteenth
Amendment right to due process. The court denied the writ, holding
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that "[n]ot only has petitioner failed to show that the state
courts' factual and legal determinations were unreasonable, it is
clear that these determinations were fully supported by the
record." James v. Marshall, No. 99-10728-RWZ, 2002 U.S. Dist.
LEXIS 8157, at *5 (D. Mass. March 12, 2002). Petitioner now
appeals.
II.
A federal court may grant habeas relief to a state
prisoner if it finds, inter alia, that the state court adjudication
"resulted in a decision that was contrary to, or involved an
unreasonable application of, clearly established Federal law . . ."
28 U.S.C. § 2254(d)(1) (2002). This section "defines two
categories of cases in which a state prisoner may obtain federal
habeas relief with respect to a claim adjudicated on the merits in
state court." Williams v. Taylor, 529 U.S. 362, 404-05 (2000). A
state court decision is "contrary to" clearly established federal
law if it "applies a rule that contradicts the governing law set
forth in [Supreme Court] cases." Id. at 405. A state court
decision involves an "unreasonable application" of clearly
established federal law if "the state court identifies the correct
governing legal principle from [Supreme Court] cases but
unreasonably applies it to the facts" of the petitioner's case, or
if the state court either "unreasonably extends a legal principle
from [Supreme Court] precedent to a new context where it should not
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apply or unreasonably refuses to extend that principle to a new
context where it should apply." Id. at 407. In either case, the
state court's determination must be unreasonable, not simply
incorrect. Id. at 411.
III.
The SJC affirmed the trial court's conclusion that when
James stated "Nope" in response to Sergeant Craig's inquiry about
making a statement, he was declining to make a formal statement,
rather than refusing to answer further questions. Therefore, the
SJC found that "Nope" was not an unequivocal assertion of his right
to remain silent which required an end to further questioning. In
reaching this conclusion, the SJC said the following:
We cannot say this determination was clearly
erroneous. Immediately before and after that
point, the defendant appears to have been
quite willing to talk. The judge was
warranted in concluding that the defendant did
not suddenly change his mind about discussing
the incident, but had no prepared speech.
James, 693 N.E.2d at 151 (emphasis added).
James argues that the SJC's consideration of his conduct
and answers after he said "Nope" violated clearly established
Supreme Court precedent in Smith v. Illinois, 469 U.S. 91 (1984).
In order to evaluate that argument, we must describe the
administration of the Miranda rights and the Supreme Court's
holding in Smith in some detail.
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Eighteen-year-old Steven Smith was arrested in connection
with an armed robbery. Shortly after his arrest, Smith was taken
to an interrogation room for questioning by two police detectives.
The interview began as follows:
Q: Steve, I want to talk with you in
reference to the armed robbery that
took place at McDonald's restaurant on
the morning of the 19th. Are you
familiar with this?
A: Yeah. My cousin Greg was.
Q: Okay. But before I do that I must
advise you of your rights. Okay? You
have a right to remain silent. You do
not have to talk to me unless you want
to do so. Do you understand that?
A: Uh. She told me to get my lawyer. She
said you guys would railroad me.
Q: Do you understand that as I gave it to
you, Steve?
A: Yeah.
Q: If you want to talk to me I must advise
you that whatever you say can and will
be used against you in court. Do you
understand that?
A: Yeah.
Q: You have a right to consult with a
lawyer and to have a lawyer present
with you when you're being questioned.
Do you understand that?
A: Uh, yeah. I'd like to do that.
Q: Okay.
Id. at 92-93 (emphasis in original). Instead of terminating the
interview at this point, the interrogating officer proceeded to
finish reading Smith his Miranda rights and then pressed him again
to answer their questions.
Q: . . . If you want a lawyer and you're
unable to pay for one a lawyer will be
appointed to represent you free of
cost, do you understand that?
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A: Okay.
Q: Do you wish to talk to me at this time
without a lawyer being present?
A: Yeah and no, uh, I don't know what's
what, really.
Q: Well, you either have to talk to me
this time without a lawyer being
present and if you do agree to talk
with me without a lawyer being present
you can stop at any time you want to.
A: All right. I'll talk to you then.
Id. (emphasis in original). Smith went on to make a confession and
was convicted of armed robbery after the trial court denied his
motion to suppress the confession. The Illinois Supreme Court
affirmed his conviction. People v. Smith, 466 N.E.2d 236 (Ill.
1984).
In assessing whether Smith had invoked his right to
counsel, the U.S. Supreme Court acknowledged that "an accused's
asserted request for counsel may be ambiguous or equivocal," and
that "courts have developed conflicting standards for determining
the consequences of such ambiguities." Id. at 95. In this case,
however, the Supreme Court saw no need to resolve those conflicting
standards. The Court explained:
The conflict among courts is addressed to the
relevance of alleged ambiguities or
equivocations that either (1) precede an
accused's purported requested for counsel, or
(2) are part of the request itself. Neither
circumstance pertains here, however. Neither
the state nor the courts below, for example,
have pointed to anything Smith previously had
said that might have cast doubt on the meaning
of the statement "I'd like to do that" upon
learning that he had the right to his
counsel's presence. . . . Nor have they
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pointed to anything inherent in the nature of
Smith's actual request for counsel that
reasonably would have suggested equivocation.
Id. at 96-97. The court then went on to explain why it had to
reverse the decision of the Illinois Supreme Court:
The courts below were able to construe
Smith's request for counsel as
"ambiguous" only by looking to Smith's
subsequent responses to continued police
questioning and by concluding that,
"considered in total," Smith's
"statements" were equivocal. This line
of analysis is unprecedented and
untenable . . . . Where nothing about
the request for counsel or the
circumstances leading up to the request
would render it ambiguous, all
questioning must cease. In these
circumstances, an accused's subsequent
statements were relevant only to the
question of whether the accused waived
the right he had invoked. Invocation and
waiver are entirely distinct inquiries,
and the two must not be blurred by
merging them together.
Id. at 97-98 (internal citations omitted).
In cases addressing the issue of whether the Miranda
rights of a person in police custody have been "scrupulously
honored," Mosley, 423 U.S. at 104, the Smith case indicates that
there is often a threshold issue: whether the suspect actually
invoked the rights in the first instance. If the individual
unambiguously invokes his rights, he "is not subject to further
interrogation by the authorities . . . unless the accused himself
initiates further communication, exchanges, or conversations with
the police." Edwards v. Arizona, 451 U.S. 477, 484-85 (1981).
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However, "if a suspect makes a reference to an attorney that is
ambiguous or equivocal in that a reasonable officer in light of the
circumstances would have understood only that the suspect might be
invoking the right to counsel, our precedents do not require the
cessation of questioning." Davis v. United States, 512 U.S. 452,
459 (1994). As the Davis decision makes clear, this threshold
inquiry is an objective one. "Invocation of the Miranda right to
counsel requires at a minimum, some statement that can reasonably
be construed to be an expression of a desire for the assistance of
an attorney." Id. (internal citations omitted).
Both Smith and Davis addressed the question of the need
for clarity in a suspect's invocation of the right to counsel,
rather than the right to remain silent implicated in this case.
However, every circuit that has directly addressed the issue "has
concluded that Davis applies to both components of Miranda: the
right to counsel and the right to remain silent." Bui v. DiPaolo,
170 F.3d 232, 239 (1st Cir. 1999) (collecting cases). This
circuit, joining the Ninth and the Second Circuits, has heretofore
left the issue open. Id. at 239 ("[W]e acknowledge that Davis does
not 'authoritatively' answer the question in the narrow, technical
sense of that term."). Given the habeas context in which James
raises the challenge to the treatment of his right to remain silent
by the police and the state courts, we leave open again the issue
of the applicability of Davis to both the right to counsel and the
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right to remain silent. "For the purposes of habeas corpus review,
we simply cannot deem unreasonable a conclusion by the
Massachusetts courts [to apply right to counsel principles to a
right to remain silent case] that is consistent with the approach
taken by so many respected tribunals." Id. Thus, in this habeas
context, we view the Smith and Davis precedents as clearly
established federal law applicable to our evaluation of the SJC's
decision on James's invocation of his right to remain silent.
However, in asserting that the SJC ruled contrary to
Smith, James ignores the holding in Smith, which was premised on
the unambiguous assertion of the right to remain silent: "We hold
only that, under the clear logical force of settled precedent, an
accused's postrequest responses to further interrogation may not be
used to cast retrospective doubt on the clarity of the initial
request itself." Smith, 469 U.S. at 100 (second emphasis added).
In this case, the trial court found ambiguity in James's response
of "Nope" to the question, "Do you wish to make a statement at this
time?" In evaluating that finding of ambiguity by the trial
court, the SJC did look at the circumstances of James's interview
before and after he said "Nope."
We cannot say this determination was clearly
erroneous. Immediately before and after that
point, the defendant appears to have been
quite willing to talk. The judge was
warranted in concluding that the defendant did
not suddenly change his mind about discussing
the incident, but had no prepared speech.
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James, 693 N.E.2d at 151. However, because the SJC did not refer
to James's post-"Nope" responses "to cast retrospective doubt on
the clarity of the initial request itself," Smith, 469 U.S. at 100,
the SJC's decision was not contrary to the clearly established
Smith precedent. Instead, the SJC used these responses, in part,
as Sergeant Craig used them during the interrogation of James
himself -- to determine whether James was in fact invoking his
right to remain silent with his ambiguous answer.
After James says "Nope" to the inquiry about a formal
statement, Sergeant Craig does not ignore his answer and forge
ahead with questions about the deadly event. Instead, he asks him
a question designed to clarify the meaning of his answer: "Okay.
Can I talk to you about what happened earlier tonight?" James
answers "Yup." Only then does the questioning about the events
continue. This is precisely the kind of "good police practice"
described by the Supreme Court in Davis, where the Supreme Court
declined to adopt a rule requiring officers to ask clarifying
questions in the face of an ambiguous assertion of the right to
counsel, but noted that "when a suspect makes an ambiguous or
equivocal statement it will often be good police practice for the
interviewing officers to clarify whether or not he actually wants
an attorney." Davis, 512 U.S. at 461. That was essentially what
Sergeant Craig did here with respect to James's invocation of the
right to remain silent.
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Hence, the "unreasonable application of federal law"
issue under AEDPA turns on the threshold question posed by Davis:
whether a reasonable police officer in the position of Sergeant
Craig would have treated James's invocation of the right to remain
silent as ambiguous, thereby justifying the clarifying question
that Sergeant Craig asked James. Davis, 512 U.S. at 459. The
trial court was correct to answer that question affirmatively, and
so was the SJC. Therefore, in summary, the decision of the SJC was
neither contrary to Smith, nor an unreasonable application of
Davis.
Affirmed.
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