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David Anthony Breaux v. Death Penalty Case Warden

July 9, 2012

DAVID ANTHONY BREAUX, PETITIONER,
v.
DEATH PENALTY CASE WARDEN, RESPONDENT.



San Quentin State Prison

ORDER & FINDINGS and RECOMMENDATIONS

On September 30, 2004, the then-assigned District Judge directed the undersigned to consider issues regarding the allegations in petitioner's claim I that post-arrest questioning violated his rights under Miranda v. Arizona, 384 U.S. 436 (1966). For the reasons set forth below, the undersigned recommends application of the presumption of correctness to the California Supreme Court's holding that petitioner's Miranda waiver was knowing and intelligent and a grant of summary judgment for respondent with respect to petitioner's Miranda claim.

I. Background

On January 6, 2004, the undersigned issued findings and recommendations on the parties' voluminous cross-motions for summary judgment. (Dkt. No. 166.) In a September 30, 2004 order, the then-assigned District Judge adopted those findings and recommendations in part. (Dkt. No. 181.) The undersigned had recommended a grant of summary judgment for respondent with respect to petitioner's claim I, in which petitioner alleges that the introduction of his post-arrest statement taken at the hospital while he was under the influence of morphine violated his rights under the Fifth, Sixth, and Fourteenth Amendments. (Dkt. No. 166 at 83-98.) The District Judge found that the analysis of petitioner's claim I set forth in the findings and recommendations overlooked the requirement that a waiver of Miranda rights be knowingly and intelligently made. (Dkt. No. 181 at 2.) The District Judge did not decide that issue but instead directed the undersigned "to consider respondent's position that state court findings on whether petitioner's Miranda waiver was 'knowing and intelligent' are entitled to a presumption of correctness in further proceedings." (Id.)

In October 2005, the parties filed status reports. (Dkt. Nos. 189, 190.) Petitioner described the status of the thirteen claims that survived summary judgment. (Dkt. No. 189.) After receipt of the answer and traverse, the court held a status conference and ordered: (1) resolution of claim S-13 would be stayed pending factual development of its issues in other capital cases in this court; (2) claim S-5 would be addressed in final merits briefing; (3) the parties would brief the remaining issue in claim I; and (4) after resolution of claim I, the undersigned would schedule an evidentiary hearing on the claims requiring factual development, as set out in the January 2004 findings and recommendations. (Dkt. Nos. 191, 200.) The parties subsequently submitted memoranda of points and authorities on the Miranda issue in claim I. (Dkt. Nos. 209, 212, 213.)

On June 21, 2006, the undersigned heard argument with respect to petitioner's claim I. On behalf of petitioner attorney Quin Denvir appeared in person and attorney Richard Neuhoff appeared by telephone. Deputy Attorney General George Hendrickson appeared for respondent. After considering the briefs and arguments of the parties, and for the reasons set forth below, the undersigned now recommends that the presumption of correctness set forth in 28 U.S.C. § 2254(d) be applied to the California Supreme Court's holding that petitioner's Miranda waiver was intelligent and knowing and that the district court grant summary judgment for respondent with respect to petitioner's claim I.

II. Petitioner's Miranda Claim - Background

In support of this claim, petitioner alleges as follows. After having been shot twice during his arrest, he was taken to a hospital for emergency surgery. His injuries were painful. He feared that the police might harm him and asked to have them removed from the emergency room. At 5:31 a.m. he received a 10-milligram injection of morphine. (Am. Pet., Dkt. No. 159, at 78 (citing RT 407, 695, 709, 724-25 & 889*fn1 ).)

According to petitioner, morphine operates on a person's central nervous system, creating a euphoria that takes away the person's perception of pain and of danger, thereby lessening the self-protective instincts. An average person under treatment with morphine would have difficulty understanding a Miranda advisement and perceiving the effect of information given to the police, even though the person may exhibit no outward signs of intoxication and may appear to understand questions and give appropriate responses. An intravenous injection of morphine has a greater effect on a patient than any other mode of administration. An injection has its peak effect on the patient about one hour after it's administered. (Id. at 78-79) (citing RT 698, 700 & 721-25; People v. Fordyce, 612 P.2d 1131, 1133 (Colo. 1980)).

Detective Bell read petitioner his Miranda rights at 6:32 a.m., when the morphine injection would have been having its maximum effect. Petitioner told Bell that he would waive his rights. Bell then interrogated petitioner for approximately an hour and ten minutes and, after a break of 15 to 20 minutes, for an additional 20 to 30 minutes. The interrogation occurred prior to petitioner's surgery. Bell testified that petitioner had some difficulty focusing his attention, that Bell had to repeat questions, that petitioner's train of thought would wander, and that the interview was terminated when petitioner no longer appeared to be responsive to questions. (Id. at 79) (citing RT 436-38, 452-54, 503-04, 514-15, 517-18 & 892).

Petitioner claims the prosecution failed to meet its burden of showing that his waiver of his Miranda rights was knowing, intelligent, and voluntary and that his statement to Bell was voluntary. Petitioner claims the use of his statement at trial violated his rights to due process and equal protection of the law, to freedom from compulsory self-incrimination, to a reliable determination of his guilt or innocence of capital murder, and to a fair, reliable, individualized, non-arbitrary, and adequately guided determination of the appropriateness of death as the penalty for the offense of his conviction. (Id. at 79-80.)

A. State Court Proceedings

On October 10, 1986, petitioner filed a motion to exclude evidence of his statement to Detective Bell on the basis that his Miranda waiver was not voluntary, knowing, and intelligent. (CT 1204-12.) The trial court held an evidentiary hearing on the motion. (CT 1246-48, 1250, 1267, 1269.) The following is the California Supreme Court's summary of the evidence presented at that evidentiary hearing and of the trial court's ruling.

Defendant contends that the trial court erred in failing to suppress a statement made to police at the University of California at Davis Medical Center following his arrest on the morning of June 19, 1984. Defendant challenged the admissibility of the statement on the ground that it was involuntary in that he lacked the mental capacity to waive his Miranda (Miranda v. Arizona (1966) 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694) rights due to the effect of morphine administered at the hospital. We conclude that there is ample support for the trial court's finding that the waiver of Miranda rights was knowing and voluntary.

Defendant was arrested after a chase and standoff, in the course of which he was shot in the arm and the thigh. Defendant was treated for an hour in the emergency room and, to reduce his pain, was given an injection of morphine. Thereafter Detective Bell of the Sacramento Sheriff's Department, who had accompanied defendant to the hospital, advised him of his Miranda rights, and defendant signed and dated a form waiving the rights. Following another half-hour medical examination, Bell commenced his interview of defendant. In the tape-recorded interview, which lasted about an hour and a half, defendant related his story of a Mexican hitchhiker who allegedly was left to guard the victim and instead shot her to death in a dumpster.

The medical personnel who attended to defendant before and during the interview testified at the hearing on the motion to suppress. Dr. Gylling and Nurse Lords treated defendant in the hour prior to the Miranda advisements, and Nurse Lords was standing several feet from defendant when Bell informed defendant of his rights.

Dr. Gylling testified that defendant's wounds were not life threatening and he estimated that defendant was in moderate pain. Defendant appeared coherent, appeared to understand completely what was said to him, and gave a detailed past history. Defendant told the doctor that he had injected heroin that day, but he showed no signs of being under the influence of heroin. To alleviate his pain, Gylling gave defendant a "small dose" of morphine, insufficient to mask symptoms or to interfere with defendant's ability to give informed consent to surgery. The morphine did not affect defendant's level of consciousness; he appeared awake, conscious, and aware throughout the medical examination, from 5:30 a.m., when the dosage was administered, until 6:15 a.m., when the doctor departed. The effects of morphine last from one to two hours; the doctor testified that the effects would have decreased after he left defendant.

Nurse Lords remained with defendant until he was taken to the jail ward at 7:20 a.m. Defendant was informed of his rights at 6:30 a.m.; he appeared alert and oriented. She testified that the officers did not use an intimidating tone and that defendant did not appear intimidated at all. He spoke slowly in a normal conversational voice and spoke as loudly as the officers. The officers' interview was interrupted by a half-hour neurologic examination conducted by Dr. Gage.

Dr. Gage testified that defendant did not appear intimidated and was assertive with hospital staff; he asked a lot of questions and gave complete and in-depth answers to question posed to him. The doctor felt that defendant was competent to give informed consent to surgery.

Detective Bell interviewed defendant sometime after 7 a.m., almost two hours after the morphine injection; at that time defendant appeared to understand the questions, was responsive, and his answers were prompt, detailed, and pertinent.

Defense psychiatrist Dr. Mehtani testified, after reviewing material supplied to him by defense counsel, that it was "very difficult" for defendant to make a voluntary statement or voluntarily waive his rights. His opinion was based primarily on defendant's lack of sleep for several days, his pain and shock from the gunshot wounds, and his abuse of heroin and cocaine in the period prior to the crime. Mehtani opined, however, that defendant's consent to surgery was knowing, intelligent, and voluntary, and he conceded that defendant was well versed in the Miranda rights, having exercised them in the prior week when arrested for being under the influence of heroin and while under the influence of heroin.

The trial court ruled that the "Miranda waiver at the hospital was given knowingly, intelligently and voluntarily," finding that, based on the testimony of the two physicians and the nurse, "there was no question . . . concerning the competency of the defendant . . . no indication of undue pressure." The trial court also noted that Dr. Mehtani's opinions were not supported in the record other than by the self-interested statements made to the doctor by defendant himself.

People v. Breaux, 1 Cal. 4th 281, 299-301 (1991).

In his automatic appeal to the California Supreme Court, petitioner argued that the trial court had erred in denying his motion to exclude evidence of his hospital statement on Miranda grounds. (AOB 75-102; ARB 19-26.) Respondent argues petitioner relied solely on the trial record to support his argument on appeal. (Dkt. No. 209 at 8.) Petitioner argues that he also relied upon factual findings on the effects of morphine, which were ...


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