FINDINGS AND RECOMMENDATIONS
Petitioner, a state prisoner proceeding through counsel, filed this action seeking a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner challenges the constitutionality of his 2001 convictions and resulting sentence for robbery and first degree felony murder with special circumstances. Petitioner contends that: (1) the trial court violated his constitutional rights by admitting into evidence at his trial a statement from petitioner that was obtained during a custodial interrogation in which he was not properly advised of his right to remain silent and in which his attempts to stop the interrogation were ignored; (2) the evidence admitted at trial was insufficient to support each of his convictions; and (3) the jury was improperly instructed at trial regarding the requisite concurrence of petitioner's criminal acts and intent. Upon careful consideration of the record and the applicable law, and for the reasons set forth below, the undersigned recommends that petitioner's application for habeas corpus relief be denied.
In 1997, a Shasta County Superior Court jury found petitioner guilty of first degree murder and robbery. It also found true the allegations that petitioner used deadly weapons (a truck and a tire iron) in the commission of the offense, that he inflicted great bodily injury on the victim, and that he committed the murder during a robbery and while lying in wait. Dckt. 38-1 (hereinafter "Winter I") at 1-2. Petitioner filed an appeal in the California Court of Appeal for the Third Appellate District, which reversed his convictions because the trial court had improperly admitted statements he made before being advised of his rights, as required by Miranda v. Arizona, 384 U.S. 436 (1966). Id. The appellate court concluded that petitioner was in custody, and should have received Miranda warnings, "at the moment the officers rebuffed [petitioner's] second oral request to leave," and that all statements between that time and the time petitioner received the Miranda warnings should have been excluded at petitioner's trial. Id. at 19. The court declined to rule on whether petitioner's post-Miranda statements "or other evidence derived from the Miranda violation" would be admissible at any retrial. Id.
Petitioner was retried in 2001. Prior to the retrial, petitioner filed a motion to suppress all of his statements to police. Resp.'s Lodg. Doc. No. 9, Clerk's Transcript on Appeal (hereinafter CT), at 279-92. Therein, petitioner argued that his statements made prior to the time the officers rebuffed his second oral request to leave should be excluded from the retrial because those statements were also custodial. Id. at 284-85. He argued that his post-Miranda statements should also be excluded because the police ignored his repeated assertions of the right to remain silent. Id. at 288-92.
In ruling on this motion, the trial judge first concluded that he was bound by the prior decision of the California Court of Appeal (Winter I) with regard to when petitioner was "in custody" for purposes of the Miranda decision. Resp.'s Lodg. Doc. 8, Reporter's Transcript on Appeal (hereinafter RT), at 51-52. Thus, he ruled that all of petitioner's statements made prior to the time the officers rebuffed his second oral request to leave were admissible at the retrial.
Id. With respect to petitioner's post-Miranda statements, the trial judge defined the relevant issue as follows: "was the waiver a product of a coercive interview prior to the admonition which would deprive Mr. Winter of the free exercise of his will in deciding whether to waive his privilege against self-incrimination." Id. at 102. The trial judge found that because the interrogation, in general, was "non-coercive" and "very low key," petitioner's Miranda waiver was valid. Id. at 102-03. The judge further found that petitioner's post-Miranda statement, "I mean, that's all I have to say on the whole thing" was not an unequivocal invocation of his right to remain silent. Id. at 103-05. Accordingly, at the retrial, the trial court admitted into evidence that portion of petitioner's police interrogation that occurred before petitioner was "in custody," as determined by the California Court of Appeal in Winter I, as well as the portion that occurred during and after the Miranda warnings. Resp.'s Lodg. Doc. 10.*fn1
After the retrial, the jury again convicted petitioner of first degree murder and robbery, found true the special circumstance of murder during the course of a robbery, and found true allegations that petitioner inflicted great bodily injury and used a deadly weapon (the tire iron). Resp.'s Lodg. Doc. 1 (hereinafter Winter II) at 2.*fn2 The jury found not true allegations that petitioner used the truck as a deadly weapon and that he had lain in wait for the victim. Id. As a result, petitioner was sentenced to a state prison term of life without the possibility of parole plus one year. Id.
Petitioner again appealed his convictions and sentence to the California Court of Appeal for the Third Appellate District. Id. On September 17, 2003, the appellate court denied petitioner relief and affirmed his convictions and sentence. Id. at 27. Petitioner then filed a petition for review in the California Supreme Court, which was summarily denied on December 23, 2003. Resp.'s Lodg. Doc. 7.
Petitioner's federal habeas petition was received for filing by this court on March 21, 2005. Dckt. 1. Respondent filed an answer on August 16, 2005. Dckt. 8. On March 10, 2010, this court issued an order appointing counsel for petitioner and, in the same order, requested that both parties file supplemental briefing on the following issues:
a. Whether one or more of petitioner's pre-Miranda statements amounted to an invocation of the right to remain silent, and if so, whether petitioner exhausted any such claim;
b. Whether one or more of petitioner's post-Miranda statements amounted to an invocation of the right to remain silent;
c. Whether petitioner's Miranda waiver and/or post-Miranda statements were involuntary; and
d. Whether petitioner's post-Miranda statements were inadmissible under Oregon v. Elstad, 470 U.S. 298 (1985) and/or Missouri v. Seibert, 542 U.S. 600 (2004).
Dckt. 15. Petitioner filed his supplemental brief on April 3, 2011. Dckt. 38. On June 22, 2011, respondent filed his supplemental responsive brief, and on August 2, 2011, petitioner filed a reply. Dckts. 44, 48.
II. Factual Background*fn3
Viewing the evidence in favor of the verdict, [petitioner] and [his friend and co-defendant Christopher Wachniuk] drank with [the victim, Dennis Howell] in a tavern, convinced him to leave with them to buy drugs, then robbed and killed him.
A debtor of Howell's paid him $80 on October 16, 1996, and saw Howell had a wad of bills, about $200 worth. A videotape from the Castle Lounge tavern shows Howell entered at 7:18 that evening. He told an off-duty bartender he had just been paid and he seemed happy. He displayed a "stack" of money.
The kitchen manager of Kona's restaurant was on a billiards team which was going to play the Castle Lounge team at 7:30. He saw [petitioner] and Wachniuk at Kona's at about 6:30 drinking a pitcher of beer. Although one of the two agreed to play in the tournament on the Kona's team, neither showed up at the Castle Lounge on time. They had said they were reluctant to play because they had no money. Later he gave them $5 (enough for two beers) for belatedly showing up.
A Castle Lounge regular customer testified [petitioner] or Wachniuk asked him outside to smoke marijuana, but he declined. Another regular customer became concerned because Howell's drinking companions did not seem like friends. Howell seemed drunk, but they did not. At times "[t]hey seemed like they were whispering and talking to each other without him being aware of what they were saying. I was kind of concerned about that." "They were kind of laughing, and it wasn't like they were laughing with him, it was like they were laughing at him." At one point Howell called [petitioner] a "peckerwood," but Howell explained he was joking and it seemed like the men were joking about it. Detective Paul Grooms testified he had since learned that "peckerwood" is a term associated with "white pride" and can be offensive. Later, Howell asked the second regular customer if he wanted to smoke marijuana, but this regular, too, declined. Howell asked him to tell the barmaid to put his pitcher "on ice, that he would be right back," at about 8:52.
The Castle Lounge barmaid knew Howell well and although he could become "loud and boisterous" he did not cause problems and "was a nice guy. He was a fun guy." [Petitioner] and Wachniuk nursed one bottle of beer each that evening, and also shared Howell's pitcher. [Petitioner] and Wachniuk never left Howell alone, and when they spoke just with each other, they seemed to be conferring, rather than talking. When she noticed the three men had left, she was surprised to see Howell's pitcher partly full of beer on the counter; Howell rarely left beer unconsumed. [Petitioner] and Wachniuk went to the Bell Lounge around 9:30 or 10:00 that night and stayed for perhaps an hour. They were nervous and bought several drinks (mostly doubles) in that time, always paying with $20 bills. At one point Wachniuk had his arm around [petitioner] and told him to shut up a couple of times. After that, the barmaid told them she would not serve them more drinks. They still tipped her lavishly.
Meanwhile, a girl had found Howell's corpse on a road near the local dump at about 9:00 that night. A sheriff's deputy arrived shortly thereafter. The body was not very cold and the deputy thought "the person there wasn't deceased for very long." He thought it was strange there were two pools of blood in the road, about three feet apart, "but I didn't see any drag marks in the blood, for instance. My conclusion was that the body must have been at rest and bleeding at this pool of blood to the south, and then somehow got moved from there to here while it was still bleeding."
A seasoned CHP officer concluded Howell was driven over at slow speed; it was not a hit-and-run accident. In his opinion the victim "was driven upon by a vehicle and the vehicle sat upon him for a short period of time and then accelerated off of him." Howell's head had taken at least five blows, possibly by a tire iron. The hands had defensive wounds. The body was crushed, "everything was shifted or kind of like squeezed off to one side." His blood-alcohol level was .23 percent. [Petitioner] voluntarily went to the Redding police station on October 22, 1996, where Detectives Grooms and Damon Minor questioned him. [Petitioner] first claimed he and Wachniuk left the bar alone. Later he said a man asked for drugs but he and Wachniuk "just left." The man "was basically bein' pretty cool." [Petitioner] later admitted agreeing to give the man a ride to get some marijuana, but after the man used "pecker-wood," "White Pride stuff," "we let him out an' then we left." The officers Mirandized [petitioner] and he then explained that Howell became belligerent, they fought, Howell went down, then Wachniuk took his wallet out of his pants before the man was accidentally run over. However, [petitioner] admitted that when they were at the bar, Howell told them "he had some money" and [petitioner] and Wachniuk planned to "'roll him'" or that Wachniuk said "'Let's roll this guy.'" [Petitioner] also said "I'm gonna do a lot of time, I'm the one that killed him," and said he hit Howell with a tire iron "a couple of times in the head" and in the body, after Howell was down. [emphasis in original]
Officers found the tire iron in [petitioner's] garage and [petitioner's] truck had human blood on it, possibly Howell's. Neither [petitioner] nor Wachniuk testified at trial. The defense theory at trial was Wachniuk was the "instigator," all three men were "very intoxicated" and the victim started a fight which got out of hand, followed by the "tragic accident" in which the victim was run over.
A. Standards for a Writ of Habeas Corpus
An application for a writ of habeas corpus by a person in custody under a judgment of a state court can be granted only for violations of the Constitution or laws of the United States. 28 U.S.C. § 2254(a). A federal writ is not available for alleged error in the interpretation or application of state law. See Wilson v. Corcoran, 562 U.S.___, ___, 131 S. Ct. 13, 16 (2010); Estelle v. McGuire, 502 U.S. 62, 67-68 (1991); Park v. California, 202 F.3d 1146, 1149 (9th Cir. 2000).
Title 28 U.S.C. § 2254(d) sets forth the following standards for granting federal habeas corpus relief:
An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the 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.
For purposes of applying § 2254(d)(1), "clearly established federal law" consists of holdings of the United States Supreme Court at the time of the state court decision. Stanley v. Cullen, 633 F.3d 852, 859 (9th Cir. 2011) (citing Williams v. Taylor, 529 U.S. 362, 405-06 (2000)). Nonetheless, "circuit court precedent may be persuasive in determining what law is clearly established and whether a state court applied that law unreasonably." Stanley, 633 F.3d at 859 (quoting Maxwell v. Roe, 606 F.3d 561, 567 (9th Cir. 2010))
A state court decision is "contrary to" clearly established federal law if it applies a rule contradicting a holding of the Supreme Court or reaches a result different from Supreme Court precedent on "materially indistinguishable" facts. Price v. Vincent, 538 U.S. 634, 640 (2003). Under the "unreasonable application" clause of § 2254(d)(1), a federal habeas court may grant the writ if the state court identifies the correct governing legal principle from the Supreme Court's decisions, but unreasonably applies that principle to the facts of the prisoner's case.*fn4
Lockyer v. Andrade, 538 U.S. 63, 75 (2003); Williams, 529 U.S. at 413; Chia v. Cambra, 360 F.3d 997, 1002 (9th Cir. 2004). In this regard, a federal habeas 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. Rather, that application must also be unreasonable." Williams, 529 U.S. at 412. See also Schriro v. Landrigan, 550 U.S. 465, 473 (2007); Lockyer, 538 U.S. at 75 (it is "not enough that a federal habeas court, in its independent review of the legal question, is left with a 'firm conviction' that the state court was 'erroneous.'"). "A state court's determination that a claim lacks merit precludes federal habeas relief so long as 'fairminded jurists could disagree' on the correctness of the state court's decision." Harrington v. Richter, 562 U.S.___,___, 131 S. Ct. 770, 786 (2011) (quoting Yarborough v. Alvarado, 541 U.S. 652, 664 (2004)). Accordingly, "[a]s a condition for obtaining habeas corpus from a federal court, a state prisoner must show that the state court's ruling on the claim being presented in federal court was so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement." Richter, 131 S. Ct. at 786-87.
If the state court's decision does not meet the criteria set forth in § 2254(d), a reviewing court must conduct a de novo review of a habeas petitioner's claims. Delgadillo v. Woodford, 527 F.3d 919, 925 (9th Cir. 2008); see also Frantz v. Hazey, 533 F.3d 724, 735 (9th Cir. 2008) (en banc) ("[I]t is now clear both that we may not grant habeas relief simply because of § 2254(d)(1) error and that, if there is such error, we must decide the habeas petition by considering de novo the constitutional issues raised.").
The court looks to the last reasoned state court decision as the basis for the state court judgment. Stanley, 633 F.3d at 859; Robinson v. Ignacio, 360 F.3d 1044, 1055 (9th Cir. 2004). If the last reasoned state court decision adopts or substantially incorporates the reasoning from a previous state court decision, this court may consider both decisions to ascertain the reasoning of the last decision. Edwards v. Lamarque, 475 F.3d 1121, 1126 (9th Cir. 2007) (en banc). "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." Richter, 131 S. Ct. at 784-85. This presumption may be overcome by a showing "there is reason to think some other explanation for the state court's decision is more likely." Id. at 785 (citing Ylst v. Nunnemaker, 501 U.S. 797, 803 (1991)). Where the state court reaches a decision on the merits but provides no reasoning to support its conclusion, a federal habeas court independently reviews the record to determine whether habeas corpus relief is available under § 2254(d). Stanley, 633 F.3d at 860; Himes v. Thompson, 336 F.3d 848, 853 (9th Cir. 2003). "Independent review of the record is not de novo review of the constitutional issue, but rather, the only method by which we can determine whether a silent state court decision is objectively unreasonable." Himes, 336 F.3d at 853. Where no reasoned decision is available, the habeas petitioner still has the burden of "showing there was no reasonable basis for the state court to deny relief." Richter, 131 S. Ct. at 784.
When it is clear, however, that a state court has not reached the merits of a petitioner's claim, the deferential standard set forth in 28 U.S.C. § 2254(d) does not apply and a federal habeas court must review the claim de novo. Stanley, 633 F.3d at 860; Reynoso v. Giurbino, 462 F.3d 1099, 1109 (9th Cir. 2006); Nulph v. Cook, 333 F.3d 1052, 1056 (9th Cir. 2003).
Petitioner claims he is entitled to federal habeas relief because: (1) the state trial court erred in admitting statements he made during a custodial interrogation in which he was not properly advised of his right to remain silent and his efforts to invoke his right to remain silent were ignored; (2) there was insufficient evidence to support his convictions for robbery, felony murder, and a robbery special circumstance, and (3) the jury instructions provided to the jury at his trial improperly defined the required concurrence of act and intent. Pet., Attach. at 1, 2. The court will address these claims in turn below.
1. Admission of Petitioner's Statements
In his habeas petition filed on March 21, 2005, petitioner claims that the trial court violated his constitutional rights by admitting into evidence statements he made during his custodial interrogation after he was given his Miranda warnings. He argues that the post-Miranda questioning and statements were "not based upon an independent, voluntary decision made by petitioner to waive his rights, but [were] made in the same interrogation immediately after [he gave an] unwarned confession, and thus [were] the product of the violation and not a free, knowing and voluntary waiver of his right to remain silent because of the coercive conditions which led up to the waiver." Dckt. 1 at 7-8. Petitioner contends that "[t]he post-Miranda statements and questioning all refer[red] to the pre-Miranda confession [which the state appellate court held was inadmissible], and in essence were merely a continuation of the un-advised statement rather than a new confession made after being fully advised and being fully able to determine whether to talk to the officers." Id. at 8. Petitioner further argues that his post Miranda statements were inadmissible because he indicated that he wanted the interrogation to cease and his statements were ignored. Id.
In the answer, respondent counters that petitioner's pre-Miranda statements did not render his post-Miranda statements inadmissible because his pre-Miranda statements were not coerced. He also argues that the state appellate court's conclusions with regard to this issue were not unreasonable. Dckt. 8 at 25-27. Respondent further contends that even if petitioner's post-Miranda statements should not have been admitted at trial, petitioner was not prejudiced by their admission because the prosecutor had sufficient other evidence to convict petitioner of the charged crimes. Id. at 27-28. In his supplemental brief, respondent notes that petitioner's post-Miranda statementsactually "bolstered his most effective defenses in this case against the most serious charge, providing the only evidentiary support for his counsel's argument that he struck and killed Howell only after Howell made derogatory racial comments and started a fight , and that the money was taken only after Howell was unconscious or dead." Dckt. 44 at 56-57.
In Winter II, the state appellate court rejected petitioner's claims in a written decision on petitioner's post-retrial appeal. Prior to addressing the claims, the court quoted its earlier opinion in Winter I, as follows:
At about 11:30 on the morning of October 22, 1996, [Investigator] Grooms and Investigator Damon Minor were serving search warrants at [petitioner's] house and Wachniuk's house. They saw [petitioner] and told him they were "doing an investigation. Told him he was not under arrest, he was free to go, but we would like to talk to him. We asked if he would come down to the police station with us, and he said he would. And we took him up to the police department and the interview proceeded from there." Officer Grooms admitted he had directed two other officers to detain [petitioner] briefly until he arrived. [Petitioner] was not restrained or handcuffed. No officer displayed weapons. The police car was unmarked. Officers Grooms and Minor questioned [petitioner] until they concluded the killing was not an accident. "There was no explanation for what had occurred as far as it wasn't a traffic collision, it wasn't self defense, and he had made no effort to give any aid for this man or do anything for him. So it turned into a custodial point at that point, and Investigator Minor read him his rights." [Petitioner] made no effort to leave even after asking if he could leave and asking to speak with his mother; instead, he kept talking.
At the hearing [on petitioner's pretrial motion to suppress his inculpatory statements to police], the defense introduced into evidence a videotape and transcript of the interrogation.
The transcript reflects the following. The officers chatted with [petitioner] about his probation for a domestic violence offense. Then they announced they were "investigators" and wanted to talk to him because "your name came up in an investigation," but he was not under arrest. "An' you don't have to be makin' these statements or . . . talk to us if you don't want [to]. Like for whatever reason, if at any time, if you decide that you don't want to talk to us that's fine you're free to leave. At . . . at any time. You're not under arrest you're here on your own free will an' . . . an' earlier you said you'd be willing to come in and talk to us." They explained "last Wednesday night there was a guy who'd been out at a bar, and ended up in the roadway and, you know, he's deceased. An' we don't know what happened to him." The only reason they wanted to speak to [petitioner] (they said) was because [petitioner] had been to a bar the decedent may have been at on the night of his death. [Petitioner] said he and his friend (co-defendant Wachniuk) had played pool in the tavern that night. He denied knowing the victim and was vague about when he was there. He and Wachniuk used [petitioner's] truck. [Petitioner] repeatedly said the bar was "dark" when asked if he had spoken to the victim. [Petitioner] said he drove the truck all night.
The officers told [petitioner] it was important for him to be honest and implied some of the things he had said were not accurate . . . . "[P]eople are tellin' us that you guys left with this guy." "An' you know, more than one person's sayin' that, so we don't think it's a mistake[.]"
Thus, the focus of the investigation was on [petitioner], and, more importantly, the officers let [petitioner] know it. [Petitioner] continued to deny he left with the victim, but admitted walking outside the tavern with a man who wanted to buy drugs, "An' I don't even know if it's the same guy. An' then we got outside, and then me an' Chris just left. . . ." He again said the bar was dark, but said the man was a "biker type like guy" who was "basically bein' pretty cool."
The officers pressed [petitioner] . . . : "Tom, Tom . . . these people are independent witnesses they don't know you, and they don't know this guy. An' their [sic] tellin' us that you guys all left together. So that's just not . . . it's not addin' up. [¶] TW [petitioner]: I just don't want no parts of this, I mean really. I'd like to leave if I could. [¶] [Officer]: Well, we've . . . [¶] TW: But I mean I'm just . . . [¶] [Officer]: We understand you don't want any part of it, okay? But you . . . but you do have a part in it. An' we . . . did you just take the guy, did you drop him off somewhere, or did you, did you . . . You know, how -- [.] That's what we need to know. I mean, we're not sayin' that you did anything to this guy, we're just sayin' that we know you left with him. . . ." [Italics in original].
Thus, the officer ignored the point of [petitioner's] statement and continued to press him. By this point, a reasonable person, told that multiple independent witnesses had undermined his story, and told that the officers believe he is lying, would understand the situation was dire.
Then the answers and questions resumed. [Petitioner] said he had nothing to do with the victim getting hurt, but they did give him a ride. "I don't know, I chickened out, Chris kind of chickened out," presumably, about making a drug deal with the victim. [Petitioner] said they dropped him off because he began using offensive "White Pride" language. When he denied there had been a fight, the officers told him "see we've been told this . . . you know, uh, it's not really a secret to us but we were told." [Petitioner] said "I'm gonna tell you this just scares me because" he had bad luck. Then the officers said "you're not here for no reason," and "we know a whole lot more than you think we know," and "there's things like physical evidence that you cannot explain away." When [petitioner] said he did not know what happened at the crime scene, one officer said "But you do know what happened."
By this point, any doubt that the officers had communicated to [petitioner] that he was suspected of wrongdoing was dispelled. The other officer then gave a long statement suggesting something went wrong, that [petitioner] had not planned it, that he was young and a good person, "Um, but somethin' happened. And, uh, you know, to . . . to sit here and deny it, it . . . it's not doing you any good, or anybody else any good. [¶] TW: I know, I mean. I-I'd just like to talk to my Mom, right now, I mean . . . [¶] [Officer]: The thing, Tom, I just want ya to understand, is that by lyin' to us, you're only gettin' in deeper in this thing. [¶] TW: I understand that. I know, I mean . . . [¶] [Officer]: I already know what's . . . [¶] TW: You know how you say, ya know, I could leave right now, on my own free will . . . . [¶] [Officer]: Mmm-Huh. [Indicates Affirmative Response] [¶] TW: . . . an' whatever . . . [¶] [Officer]: Right. Right. [¶] TW: And I mean . . . [¶] [Officer]: But what we want ya to understand is that we're given ya only -- an [sic, (or one?)] opportunity to just tell us the truth. 'Cause right now, on the ...