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Harpal Singh Ahluwalia v. Robert Ayers

December 6, 2010

HARPAL SINGH AHLUWALIA, PETITIONER,
v.
ROBERT AYERS, JR., RESPONDENT.



FINDINGS AND RECOMMENDATIONS

I. INTRODUCTION

Petitioner, Harpal Singh Ahluwalia, is a former state prisoner proceeding through counsel with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner, who was released on parole on January 13, 2008, challenges the constitutionality of his 2003 convictions in the Superior Court of Sacramento County for soliciting Carlos Ramirez and David Leal to commit the murders of his estranged wife and her brother, in violation of CAL. PENAL § 653f(b). Upon careful consideration of the record and applicable law, it is recommended that this petition for writ of habeas corpus relief be denied.

II. ISSUES PRESENTED

Petitioner sets forth five grounds for relief in his pending petition. Specifically, Petitioner's claims are as follow:

(1) His Fifth and Fourteenth Amendment Due Process rights were violated when his statement, unlawfully obtained through police coercion, was used against him at trial.

(2) His Fifth and Fourteenth Amendment Due Process rights were violated when the trial court instructed the jury, pursuant to CALJIC 2.17.5, that his silence in the face of an accusation could be considered an adoptive admission and the prosecutor was subsequently permitted to argue in closing statements that the jury could infer Petitioner's guilt from his post-arrest, post-Miranda silence.

(3) His Sixth Amendment right to confrontation was violated when cross examination of complaining witness Manjit Walia was curtailed.

(4) His Sixth Amendment right to confrontation was violated when damaging hearsay evidence of an unknown origin was presented at trial through the testimony of Detective Patrick Keller.

(5) He was denied his Sixth Amendment right to effective assistance of trial counsel due (a) to counsel's failure to conduct necessary pre-trial investigation into the drug and mental health problems of Carlos Ramirez, (b) to investigate and impeach Manjit Walia for lying under oath about the cause of his wife's death, (c) to present a defense, as well as

(d) counsel's cumulative errors.

Petitioner's claims one and two are both allege due process violations, and will be in subsection (A). Subsection (B) examines Petitioners third and fourth claims regarding the alleged violations of his right to confrontation. Lastly, subsection (C) addresses the multiple ineffective assistance of counsel violations alleged with Petitioner's claim five.

III. FACTUAL BACKGROUND

The basic facts of Petitioner's crimes were summarized in the unpublished opinion*fn1 of the California Court of Appeals, Third Appellate District, as follows:

Carlos Ramirez testified that at the time of the incident, he was a drug addict in need of money. Ramirez expressed his need of money to David Leal who informed him of a man who was willing to pay money for the murder of "a lady and his kids." On July 17, 2001, Ramirez informed the police that Leal was selling cocaine and that a man would pay to have someone burned alive. After questioning, Ramirez agreed to participate in an undercover operation the next day.

Wearing a recording device, Ramirez met with Leal and defendant at Leal's auto body shop on July 18, 2001. The parties conversed about cars, real estate, and then it turned to money and defendant's problems. Defendant told Ramirez and Leal about people wanting to kill him, then requested Ramirez to "save my life." When Ramirez asked how many people they were talking about, defendant responded that it was "just brother and sister." Defendant further explained that the "woman is over here. It's easy to do and man is in Redwood City. Defendant said he could show Ramirez where the man lives. Leal asked defendant if he wanted to get the sister too, and defendant responded, "[I]f you can, yeah, of course." Defendant continued that "before she move, I wanted to, you know, fix it." Defendant then offered to drive Ramirez to the location where the woman lived and where she took her kids to school. When Ramirez asked, "Which one you want get first," defendant responded, "[D]o sister." Defendant cautioned Ramirez that they are "very clever" and that "she clean the . . . secret bank files," but that "[s]he don't working now." Defendant knew "what number she live" and he would "get the apartment key also."

Ramirez queried how much defendant was willing to pay. After a discussion of the value of his car, defendant responded "two for five," then later, "three apiece." Ramirez asked who would supply the guns and defendant responded, "That's your thing." Defendant then agreed to take Ramirez to the victims' houses. He said he would show Ramirez "her routes."

Defendant drove Ramirez down Florin Road to the apartment complex where defendant's wife resided. Defendant told Ramirez it was apartment number 22. Defendant then drove Ramirez to his children's school in Elk Grove. Finally, the two went to Home Depot, where defendant had a duplicate key made, which he gave to Ramirez. While defendant was inside Home Depot, a member of the surveillance team approached Ramirez and told him not to go with defendant to Redwood City, but to insist the two go back to Leal's body shop.

The next day, Ramirez returned to Leal's shop with Detective James Rodriguez, who was acting undercover as a man willing to commit a murder for money. Defendant was not present during the meeting. Ramirez, Leal, and Rodriguez discussed the details, including the location, weapons, and persons to murder. Ramirez and Rodriguez left the body shop but returned later that evening. Leal attempted to call defendant but was unable to reach him. The parties continued to discuss their plan and continued to try to reach defendant.

Shortly before midnight on July 18, police arrived at the apartment of defendant's wife. The officers showed her a surveillance photograph of defendant taken at Leal's body shop. She identified the man in the photograph as defendant, whom she had left. Defendant's wife denied that her husband was physically abusive towards her, but told officers that her husband was mentally abusive. The officers asked her to relocate to a motel because they felt like her life was in danger. Though she resisted at first, she agreed to go to the motel with her two sons.

The next day, July 19, Detective John Keller visited defendant's wife at the motel. Detective Keller agreed to retrieve asthma medication from her apartment. As he was exiting the apartment, Detective Keller noticed a white car pull up, then quickly turn around and exit the parking lot. Approximately one mile down the road, the white car was stopped and defendant was identified as the driver. Defendant was wearing a large knife in a sling over his clothing and another knife in a sling under his clothing. Defendant also had $4,900 in hundred dollar bills on his person and a key that opened his wife's apartment.

Detective Keller did not read defendant his Miranda rights at the time he was taken into custody, which was just after 10:30 p.m. Defendant was read his Miranda rights at approximately 12:30 a.m., while in an interrogation room. Throughout the reading of his rights, defendant responded that he understood each right, but questioned Detective Keller as to why he had not been told these rights earlier. Detective Keller responded, "[J]ust because I hadn't gotten there yet." Thereafter, defendant spoke with Detective Keller at length regarding the alleged solicitation. Defendant's story was that Ramirez, for $5,000, would pray for and change the spirits of his wife and brother-in-law. Defendant believed, by "changing their spirits," both his wife and brother-in-law would like him again. A videotape of defendant's statements to Detective Keller was made.

A jury was given defendant's and Leal's videotaped statements and the transcripts, the surveillance videotapes and transcripts, and the wire cassette tapes and transcripts. Following deliberation, the jury found defendant guilty of soliciting the murder of his wife and brother-in-law. (Lodged Doc. 3 at 3-5).

Petitioner was sentenced to a term of nine years imprisonment on the first count of solicitation, and a concurrent sentence of six years on the second count of solicitation. Petitioner timely appealed his convictions to the California Court of Appeal, Third Appellate District. The appellate court affirmed his convictions on July 5, 2005. Petitioner next sought review of his convictions in the California Supreme Court. That petition was denied without comment on October 12, 2005. Petitioner then filed a petition for a writ of certiorari in the United States Supreme Court. The Court denied review on February 27, 2006.

After exhausting the appellate process, Petitioner sought habeas corpus relief in the Sacramento County Superior Court. On July 19, 2006, the court denied his petition in a reasoned opinion. Petitioner subsequently filed that same habeas corpus petition in the California Court of Appeal for the Third Appellate District and the California Supreme Court. Both petitions were denied without comment.*fn2 Petitioner filed this federal petition for writ of habeas corpus on June 19, 2008. Respondent filed an answer on September 17, 2009, and Petitioner filed his traverse on January 11, 2009.

IV. APPLICABLE STANDARD OF HABEAS CORPUS REVIEW

This case is governed by the provisions of the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), which applies to all petitions for writ of habeas corpus filed after its enactment on April 24, 1996. Lindh v. Murphy, 521 U.S. 320, 326 (1997); Jeffries v. Wood, 114 F.3d 1484, 1499 (9th Cir. 1997). Under AEDPA, an application for a writ of habeas corpus by a person in custody under a judgment of a state court may be granted only for violations of the Constitution or laws of the United States. 28 U.S.C. § 2254(a); Williams v. Taylor, 529 U.S. 362, 375 n. 7 (2000). Federal habeas corpus relief is not available for any claim decided on the merits in state court proceedings unless the state court's adjudication of the claim:

(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). Although "AEDPA does not require a federal habeas court to adopt any one methodology," Lockyer v. Andrade, 538 U.S. 63, 71 (2003), there are certain principles which guide its application.

First, AEDPA establishes a "highly deferential standard for evaluating state-court rulings." Woodford v. Visciotti, 537 U.S. 19, 24 (2002). Accordingly, when determining whether the law applied to a particular claim by a state court was contrary to or an unreasonable application of "clearly established federal law," a federal court must review the last reasoned state court decision. Robinson v. Ignacio, 360 F.3d 1044, 1055 (9th Cir. 2004); Avila v. Galaza, 297 F.3d 911, 918 (9th Cir. 2002). Provided that the state court adjudicated petitioner's claims on the merits, its decision is entitled to deference, no matter how brief. Lockyer, 538 U.S. at 76; Downs v. Hoyt, 232 F.3d 1031, 1035 (9th Cir. 2000). Conversely, when it is clear that a state court has not reached the merits of a petitioner's claim, or has denied the claim on procedural grounds, AEDPA's deferential standard does not apply and a federal court must review the claim de novo. Nulph v. Cook, 333 F.3d 1052, 1056 (9th Cir. 2003); Pirtle v. Morgan, 313 F.3d 1160, 1167 (9th Cir. 2002).

Second, "AEDPA's, 'clearly established Federal law' requirement limits the area of law on which a habeas court may rely to those constitutional principles enunciated in U.S. Supreme Court decisions." Robinson, 360 F.3d at 155-56 (citing Williams, 529 U.S. at 381). In other words, "clearly established Federal law" will be " the governing legal principle or principles set forth by [the U.S. Supreme] Court at the time a state court renders its decision." Lockyer, 538 U.S. at 64. It is appropriate, however, to examine lower court decisions when determining what law has been "clearly established" by the Supreme Court and the reasonableness of a particular application of that law. See Duhaime v. Ducharme, 200 F.3d 597, 598 (9th Cir. 2000).

Third, the "contrary to" and "unreasonable application" clauses of § 2254(d)(1) have "independent meanings." Bell v. Cone, 535 U.S. 685, 694 (2002). Under the "contrary to" clause, a federal court may grant a writ of habeas corpus only if the state court arrives at a conclusion opposite to that reached by the Supreme Court on a question of law, or if the state court decides the case differently than the Supreme Court has on a set of materially indistinguishable facts. Williams, 529 U.S. at 405. It is not necessary for the state court to cite or even to be aware of the controlling federal authorities "so long as neither the reasoning nor the result of the state-court decision contradicts them." Early v. Packer, 537 U.S. 3, 8 (2002). Moreover, a state court opinion need not contain "a formulary statement" of federal law, but the fair import of its conclusion must be consistent with federal law. Id.

Under the "unreasonable application" clause, the court may grant relief "if the state court correctly identifies the governing legal principle...but unreasonably applies it to the facts of the particular case." Bell, 535 U.S. at 694. As the Supreme Court has emphasized, a court may not issue the writ "simply because that court concludes in its independent judgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly." Williams, 529 U.S. at 410. Thus, the focus is on "whether the state court's application of clearly established federal law is objectively unreasonable." Bell, 535 U.S. at 694 (emphasis added).

Finally, the petitioner bears the burden of demonstrating that the state court's decision was either contrary to or an unreasonable application of federal law. Woodford, 537 U.S. at 24 ; Baylor v. Estelle, 94 F.3d 1321, 1325 (9th Cir. 1996).

V. DISCUSSION

A. Due Process

1. Voluntariness of Petitioner's Post-Arrest Statement

Petitioner claims that his due process rights were violated when his unlawfully coerced statements were introduced against him at trial. Petitioner notes that his claim does not allege a violation of Miranda v. Arizona, 384 U.S. 436 (1966). Rather, he challenges solely the voluntariness of the statements obtained from him during his interrogation at the police station following his arrest. Although Petitioner did not confess to the crimes of which he was accused, he claims that the statements obtained from him during the interrogation were very damaging and bolstered the prosecution's case against him. Petitioner contends that the collective actions of Detective John Keller, who interrogated Petitioner upon his arrest, were coercive, manipulative, and misleading, thus undermining the voluntariness of his statements.

Respondent argues that Petitioner's claim is procedurally barred on the grounds that he failed to object to the admission of his statements at trial. In the alternative, Respondent argues that Petitioner's claim must be denied on the merits because he spoke voluntarily with Detective Keller, who made no promises or threats to Petitioner in order to induce his statements. Moreover, Respondent contends that the state appellate court's adjudication of Petitioner's claim on the merits was neither contrary to nor a unreasonable application of clearly established federal law, nor was it based on an unreasonable determination of the facts.

The United States Constitution mandates that confessions be made voluntarily.*fn3 See Lego v. Twomey, 404 U.S. 477, 483-85 (1972). Involuntary confessions may not be used to convict criminal defendants because they are inherently untrustworthy and because society shares "the deep-rooted feeling that the police must obey the law while enforcing the law; that in the end life and liberty can be as much endangered from illegal methods used to convict those thought to be criminals as from the actual criminals themselves." Spano v. New York, 360 U.S. 315, 320-21 (1959). A confession is voluntary only if it is "'the product of a rational intellect and a free will.'" Medeiros v. Shimoda, 889 F.2d 819, 823 (9th Cir. 1989) (quoting Townsend v. Sain, 372 U.S. 293, 307 (1963)). See also Blackburn v. Alabama, 361 U.S. 199, 208 (1960).

The test for voluntariness, however, is not a simple question of whether a suspect's statement was the product of his own free will. Rather, "coercive police activity is a necessary predicate to the finding that a confession is not 'voluntary' within the meaning of the Due Process Clause of the Fourteenth Amendment." Colorado v. Connelly, 479 U.S. 157, 167 (1986). In other words, a statement is considered involuntary when the police obtained it "by physical or psychological coercion or by improper inducement so that the suspect's will was overborne." United States v. Leon Guerrero, 847 F.2d 1363, 1366 (9th Cir. 1988). Officials may not extract a confession "by any sort of threats or violence nor...by any direct or implied promises, however slight, nor by the exertion of any improper influence." Hutto v. Ross, 429 U.S. 28, 30 (1976) (internal quotations omitted). In making the voluntariness determination, relevant factors to consider may include the youth of the accused, lack of education, low intelligence, lack of advice to the accused of his constitutional rights, the length of detention, the repeated and prolonged nature of the questioning, or the use of physical punishment such as deprivation of food or sleep. Schneckloth v. Bustamonte, 412 U.S. 218, 226 (1973) (internal citations omitted). A confession must be suppressed when the totality of the circumstances demonstrate that the confession was involuntary. Dickerson v. United States, 530 U.S. 428, 434 (2000). See also Winthrow v. Williams, 507 U.S. 680, 711-712 (1993) (noting that a determination of voluntariness is on the totality of the circumstances).

The California Court of Appeal, Third Appellate District, considered and rejected Petitioner's involuntariness claim on the merits, explaining its reasoning as follows:

Defendant claims his statements were involuntary because of the coercive environment of the interrogation and threats of incarceration and deportation. Defendant further claims that at no time did he offer an unqualified waiver of his rights and he requested the assistance of counsel, which was denied in violation of his Sixth Amendment rights.

Defendant failed to object during trial to admission of the statements on the grounds of involuntariness. However, where the confession is as a matter of law involuntary, defendant's failure to object will not bar review. (In re Cameron (1968) 68 Cal.2d 487, 503.) While Cameron has been cited as questionable precedent, it has yet to be overruled by the Supreme Court. (People v. Kelly (1992) 1 Cal.4th 495, 519 fn. 5.) Therefore, we will consider whether the statement is involuntary as a matter of law. "[A]n involuntary confession or admission is inadmissible; a statement is involuntary if it is the product of coercion or more generally, 'overreaching"; involuntariness requires coercive activity on the part of the state or its agents; and such activity must be, as it were, the 'proximate cause' of the statement in question, and not merely a cause in fact." (People v. Mickey (1991) 54 Cal.3d 612, 647.) "'[I]n carrying out their interrogations the police must avoid threats of punishment for the suspect's failure to admit or confess particular facts and must avoid false promises of leniency as a reward for admission or confession . . . . [They] are authorized to interview suspects who have been advised of their rights, but they must conduct the interview without the undue pressure that amounts to coercion and without the dishonesty and trickery that amounts to false promise.'" (People v. Holloway (2004) 33 Cal.4th 96, 115, quoting People v. Andersen (1980) 101 Cal.App.3d 563, 576; People v. Maestas (1987) 194 Cal.App.3d 1499, 1506.)

Defendant argues that threats of incarceration, insinuation of deportation, and implied inducements of freedom all rendered his statements involuntary. He claims Detective Keller's threats are contained in the following excerpts: "[Detective Keller]: But if you want an attorney, then I'm just gonna leave, and I'm gonna go do my business, and you're gonna go to County Jail. Okay? . . . [¶] . . . "[Detective Keller]: Well, I don't want to say anymore if you don't want to talk. I'm gonna get up and go do my paperwork and go home. So it -- it's up to you. "[Defendant]: What's going to happen to me now? "[Detective Keller]: Well, you're gonna go to jail."

Detective Keller then told defendant that he was going to leave the room and instructed defendant to knock on the door if defendant wished to speak. Defendant, in his opening brief, claims that he was then "abandoned, and held in isolation for nearly an hour until he surrendered to fatigue and knocked on the door." However, defendant does not support his allegation with any reference to the record. The record indicates defendant knocked on the door at some point and continued speaking with detective Keller.

Defendant claims threats of incarceration made his statement involuntary. However, the record does not reveal that Detective Keller threatened defendant with jail if he did not confess. The truth was that defendant would be going to jail because he had already been arrested for solicitation of murder. There is no evidence Detective Keller threatened defendant in a way that made defendant's statement involuntary. (See People v. Spears (1991) 228 Cal.App.3d 1, 27.)

As to defendant's claim of implied inducements of freedom, this record contains no such inducements. There was no promise by the detective that defendant would return to his home. At one point, defendant asked what happens next, Detective Keller responded, "[D]epends what all -- what all is said." This is not a promise to release defendant if he confesses. There is nothing in the record to substantiate defendant's claim that his will was overcome with implied inducements of freedom.

As to the claim of threat of deportation, the following exchange occurred on the record: "[Detective Keller]: What happens with you and your deportation if you get arrested for another felony? "[Defendant]: Pardon? "[Detective Keller]: If you get arrested and put in jail for a felony -- "[Defendant]: Yes. "[Detective Keller]: -- what happens with your deportation and immigration stuff? "[Defendant]: So what I do? "[Detective Keller]: Can you be deported, or is that what will happen? "[Defendant]: Maybe."

This can hardly be characterized as a threat, and even if it were a threat, the consequences would flow naturally from the outcome of the criminal case. Detective Keller did not trick defendant nor was he dishonest with defendant. There is no indication of any false promises to defendant. This line of questioning by Detective Keller could not have overcome the rational intellect and free will of defendant as a matter of law. (See People v. Flores (1983) 144 Cal.App.3d 459, 468.)

Defendant also argues he did not voluntarily waive his Miranda rights and therefore his statements were improperly admitted. However, this issue is barred because it was not properly preserved for appeal. (People v. Michaels (2002) 28 Cal.4th 486, 511-512.) There is no evidence in the record that defendant moved in limine or objected to the statements on the grounds of an involuntary Miranda waiver. The only time that waiver was brought up was when the defense voir dired Detective Keller regarding whether defendant voluntarily waived his rights. However, at no time did defendant object to the statement on the grounds of an involuntary waiver. Therefore, we need not review the merits of this claim.

Defendant claims admission of his statement violated his Sixth Amendment right to counsel because while in custody he requested the assistance of counsel and was denied such assistance. Defendant's failure to raise the Sixth Amendment claim in the trial court waived the issue on appeal. (People v. Watson (1977) 75 Cal.App.3d 384, 394.) Moreover, defendant's statement, "I think I should talk to the attorney," is not an unequivocal request for an attorney and, therefore, the right to counsel was not implicated. (Davis v. United States (1994) 512 U.S. 452, 459 [129 L.Ed.2d 362, 371.) (Lodged Doc. 3 at 8-12.)

Petitioner contends that the state appellate court improperly condoned Detective Keller's use of coercive interrogation techniques and that the court's reasoning is unsupported by the record. According to Petitioner, the totality of the circumstances surrounding his interrogation demonstrates that his statement was given involuntarily because "Detective Keller used psychological coercion and deceptive strategies, overcoming Petitioner's ability to exercise his right to remain silent." (Pet. at 10.) Petitioner claims that he, "an immigrant from India, was handcuffed at gunpoint and taken to the police station in the late evening where he was subjected to intensive interrogation in his fragmented second language." (Pet. at 7.) Petitioner claims he was threatened with "immediate incarceration and future deportation," that Detective Keller implied Petitioner would be released if he cooperated, and that "[n]o Miranda warnings were given until the interrogation was well under way and Petitioner was irrevocably committed to being interviewed." Id. Petitioner further alleges that Detective Keller refused to inform him of the basis for his arrest, deprived him of food, drink and sleep, and, when he attempted to invoke his right to counsel, he "was isolated in a room for approximately one hour in the middle of the night to 'think about it' until, deprived of sleep and refreshment, he agreed to continue the interview." Id. The totality of the circumstances, compounded by Petitioner's difficulty with the English language, confusion regarding his rights, and exhaustion, according to Petitioner, rendered his statement involuntary.

Petitioner overstates the circumstances revealed by the videotape and written transcript of his interrogation by Detective Keller. The court has reviewed both the videotape and written transcript of the interrogation, which took place in the early morning hours of July 20, 2001 following Petitioner's arrest. The videotape begins several minutes into the interrogation and ends after the interrogation has concluded. The written transcript appears to reflect the complete interrogation from beginning to end. Petitioner can be observed on the tape beginning at 12:27 a.m. until 3:11 a.m. when the tape ends. Throughout the course of the interrogation, Petitioner shows no signs of drowsiness, pain or incoherence.*fn4 Nor does Petitioner complain of any physical ailments. There is no indication that he is under the influence of a substance, and in fact, he informed the detective that he does not drink alcohol. (Lodged Doc. 10 at 536.) Petitioner was supplied with several bottles of drinking water throughout the course of the interrogation. Indeed, he has a bottle of water in front of him at 12:27 a.m. when the tape of the interrogation begins and can be observed drinking from it periodically. At 1:07 a.m. Petitioner requested another bottle of water and to use the restroom. His requests were complied with immediately. He and the detective left the room to use the restroom and, upon their return, another bottle of water was given to Petitioner at 1:13 a.m. A third bottle of water was given to Petitioner at 2:40 a.m. Petitioner did not request any food throughout the course of the interview.

Petitioner does not assert, and the record does not reflect, that his age, education or intelligence made him susceptible to coercion. Schneckloth, 412 U.S. at 226. To the contrary, the record reflects that Petitioner was forty-seven years old at the time of the interrogation and was college educated in both India and the United States. To the extent that Petitioner claims the voluntariness of his statement is undermined by his limited English language skills, this claim is also unsupported by the record. Although Petitioner clearly speaks with an accent and at times can be difficult to understand, he displays no difficulty understanding the questions asked of him, and in fact, responds to questions in a normal and appropriate manner. Indeed, Petitioner's claim is further weakened because he confirmed during the interrogation that he could read English, and also revealed that he had worked as a Punjabi interpreter for an immigration attorney in San Francisco, California. (Lodged Doc. 10 at 533, 537).

Although Petitioner does not expressly make a Miranda claim in the pending petition, he does claim that Detective Keller failed to inform him of his rights under Miranda "until the interrogation was well under way and Petitioner was irrevocably committed to being interviewed," and then ignored Petitioner's repeated requests for counsel, thus demonstrating that the detective's actions were manipulative, misleading and coercive. However, not all police questions implicate Miranda; only statements resulting from custodial police interrogation fall within its scope. Rhode Island v. Innis, 446 U.S. 291, 299-300 (1980). "[I]nterrogation means questioning or 'its functional equivalent,' including 'words or actions on the part of the police . . . that the police should know are reasonably likely to elicit an incriminating response from the suspect." Pope v. Zenon, 69 F.3d 1018, 1023 (9th Cir. 1995) (quoting Innis, 446 U.S. at 301). In contrast, questions or statements that are "normally attendant to arrest and custody" do not constitute interrogation. Pennsylvania v. Muniz, 496 U.S. 582, 600-02 (1990).

Miranda warnings are required prior to a custodial interrogation. Miranda v. Arizona, 384 U.S. 436 (1966). If an accused is not advised of his rights prior to an interrogation, any statements he makes, whether inculpatory or exculpatory, may be excluded from evidence. Id. at 444. Once an accused has been properly advised of his rights, he may make a knowing, intelligent, and voluntary waiver of them. Id. at 475. A valid waiver depends on the totality of the circumstances, including the background, experience, and conduct of the defendant. See United States v. Bernard S., 795 F.2d 749, 751 (9th Cir. 1986).

In Petitioner's case, prior to reaching any substantive questioning, Detective Keller spent approximately twenty minutes obtaining background information from Petitioner. This information included Petitioner's address, phone number, business address, business phone number, cell phone number, social security number, his country of origin, how long he had been living in the United States, where he had lived in the United States, how long he had lived in Sacramento, whether he had relatives in the Sacramento area, his level of education, his native language, whether he had any medical problems, whether he had ever been in trouble with the police or had been arrested in the United States, whether he was on probation, and whether he had been drinking that evening. (Lodged Doc. 10 at 521-537.) The state appellate court properly found that this line of questioning did not implicate Petitioner's Miranda rights. On this record, it cannot be said that Detective Keller's questions prior to informing Petitioner of his Miranda rights were "reasonably likely to elicit an incriminating response from the suspect." Pope v. Zenon, 69 F.3d at1023. Moreover, that Petitioner sua sponte disclosed what he believes to be incriminating information during the first twenty minutes he spoke to Detective Keller is of no consequence. "[T]he police surely cannot be held accountable for the unforeseeable results of their words or actions...." Innis, 446 U.S. at 302.

After collecting the above discussed background information, Detective Keller then told Petitioner that he needed to inform him of his Miranda rights, confirmed that Petitioner could read English, and handed Petitioner a card containing a written version of the rights. Detective Keller then advised Petitioner of his Miranda rights orally, and Petitioner followed along by reading the card:

DET. KELLER: - - but if you'll - - could you read English? [PETITIONER]: Yes.

DET. KELLER: Why don't you read it while I say it out loud.

Okay? You have the right to remain silent. [PETITIONER]: Okay.

DET. KELLER: You understand that? [PETITIONER]: Okay.

DET. KELLER: Do you understand that?

[PETITIONER]: Yes.

DET. KELLER: Anything you say may be used against you in court. [PETITIONER]: Okay.

DET. KELLER: Do you understand that? [PETITIONER]: You have the right to the presence of an attorney before and during any questioning. Do you understand that? [PETITIONER]: Yes.

DET KELLER: If you cannot afford an attorney, one will be appointed for you free of charge before any questioning ...


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