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Campos v. Stone

United States District Court, N.D. California

August 9, 2016

DANIEL STONE, Respondent.




         The habeas petitioner in this case, Primitivo Campos, was convicted in state court of molesting a child at the day care his wife ran in their home. Aside from the child victim's testimony (which suffered from inconsistencies, was at times controverted by third party witnesses, and may have been influenced by a similar allegation her friend had recently made against a different person), the only evidence against Campos was an incriminating series of statements that investigators extracted from him during a custodial interrogation. The investigators, in their attempt to get Campos to confess, performed fake fingerprint and DNA tests on him. They insisted repeatedly and forcefully, but falsely, that the fake tests demonstrated to a certainty that Campos had touched the child's genitals. When Campos continued trying to deny ever touching the child's genitals or molesting her in any way, the investigators repeatedly interrupted him and insisted that this could not possibly be the truth in light of the fingerprint and DNA evidence. They yelled "no, no, no!", insisted their evidence "doesn't lie, " and said things like: "Okay, so you're lying to us. You have to tell us the truth." They emphasized that if Campos continued to deny the "truth" of the fingerprint and DNA evidence, the district attorney would not like it. Accordingly, the investigators repeatedly and forcefully exhorted Campos to at least allow for the possibility that his hand might have touched the victim's genitals accidentally. They refused to accept any statement from Campos that did not allow for this possibility.

         Perhaps a more sophisticated person would have continued to insist he never touched the victim's genitals, either accidentally or on purpose. But Campos had a third grade education from Mexico. He had no prior experience with the criminal justice system, and clearly had difficulty understanding the evidentiary concepts the officers introduced to him. It's no wonder, in light of the officers' exhortations, that Campos eventually felt compelled to allow for the possibility of an accidental touching. Many people in the same position would react this way - particularly people as unsophisticated as Campos - whether they were guilty or innocent.

         Throughout the remainder of the interrogation, Campos continued to insist he never intended to touch the victim inappropriately. Indeed, at times he seemed to try to back away from the possibility that an accidental touching might have occurred, only to be steamrolled by the officers. Eventually, Campos ended the interview and asked for a lawyer.

         At trial, during closing argument, the prosecutor made effective use of Campos' statements, insisting that no innocent person would ever have allowed for the possibility of even an accidental touching. And the jury convicted Campos of some counts, likely in reliance on Campos' statements and on the prosecutor's assertions about those statements.

         The trial judge should never have allowed Campos' statements to be admitted. And the two-justice majority on California's Sixth District Court of Appeal should never have voted to affirm the conviction on direct appeal. In fact, the majority's ruling hinged on an objectively "unreasonable determination of the facts" within the meaning of the federal habeas statute. 28 U.S.C. § 2254(d)(2). In particular, the majority unreasonably determined that the officers were merely "urging the defendant to tell the truth, " when in reality they were insisting that Campos allow for the possibility of an accidental touching regardless of what the real truth was, and insisting that the district attorney would not like it if Campos refused to make a statement consistent with their fake scientific evidence. The majority's mischaracterization of what happened during the interrogation reflects a plain misapprehension of the record, going to a material factual issue that was central to the defendant's claim. See Sharp v. Rohling, 793 F.3d 1216, 1229 (10th Cir. 2015) (quoting Byrd v. Workman, 645 F.3d 1159, 1171-72 (10th Cir. 2011)); Taylor v. Maddox, 366 F.3d 992, 1001 (9th Cir. 2004) (citing Wiggins v. Smith, 539 U.S. 510, 526 (2003); Hall v. Dir. of Corr., 343 F.3d 976, 983 (9th Cir. 2003) (per curiam)). As the opinion of the dissenting justice shows, once this misapprehension is eliminated, and once the facts and the law are considered objectively, it is clear that that Campos' statements to the interrogators were obtained in violation of his due process rights. And because the admission of these statements was not harmless under Brecht v. Abrahamson, 507 U.S. 619 (1993), the petition for a writ of habeas corpus is granted.


         Until the time of his arrest in December 2010, Campos regularly helped out at his wife's home day care facility. His wife had been operating the facility for many years, and Campos had assisted her since 2000. 12 RT, Dkt. No. 16-3, at 3437; 11 RT, Dkt. No. 16-1, at 3055, 3071.[1]Campos sometimes watched children while his wife was in another room, and he regularly drove children by himself from the day care to school and back again. 12 RT, Dkt. Nos. 16-3 and 16-4, at 3438-41, 3485; 11 RT, Dkt. No. 16-1, at 3070. On December 22, 2010, a child at the day care, whose initials are K.M. and who was five years old at the time, told her mother that Campos had touched her genitals under her clothes. Cal.Ct.App. Opinion, Dkt. No. 17-4, at 2. The details of her accusation are discussed more fully in Section V.

         After K.M.'s mother called the police, they arrested Campos, brought him to the station, took his fingerprints and a blood sample, put him in an interrogation room, and cuffed one of his hands to a table. Cal.Ct.App. Opinion, Dkt. No. 17-4, at 2; 3 CT, Dkt. No. 14-5, at 482, 490. They advised Campos of his Miranda rights. Cal.Ct.App. Opinion, Dkt. No. 17-4, at 3.

         Before the interrogation began, Detective Emilio Perez entered the interrogation room wearing blue rubber gloves, carrying a manila envelope and a cotton swab. Perez proceeded to swab Campos' fingers and hands, then placed the swab in the envelope and left the room. Several minutes later, Perez and another detective, Matthew DeLorenzo, returned and began interrogating Campos. During the interrogation, the investigators reminded Campos they had taken his fingerprints, told him they'd collected DNA from his blood and his hands, and told him they'd also collected DNA and fingerprint evidence from K.M.'s genitals. 3 CT, Dkt. No. 14-5, at 490, 494. They told Campos that the results of the DNA and fingerprint tests were "going to tell us the truth, " and that if there was a match, they'd know he touched K.M.'s genitals inside her pants. Id. at 496, 500. DeLorenzo was the primary interrogator and asked questions in English; Perez attempted to translate to Spanish for Campos.

         The DNA and fingerprint tests were a ruse, and as the Court of Appeal majority noted, that ruse "was a major theme of the interrogation." Cal.Ct.App. Opinion, Dkt. No. 17-4, at 3. While the officers were waiting for the supposed "results" of their tests, they told Campos that the technology was "very advanced, " that their tests could detect a person's fingerprints on a child's body for up to a month after an incident, and that their tests could even tell which part of a person's body a particular DNA sample came from: from the head, the face, or the hands. 3 CT, Dkt. No. 14-5, at 493, 492, 491. At one point, the investigators also pretended to go to the laboratory to retrieve the results of the DNA and fingerprint tests, only to return several minutes later and explain they had to wait a little longer for the results to be complete. Id. at 493-94. Eventually, another officer brought the interrogators an envelope containing the fake test results. Id. at 497. Before opening the envelope, the officers said K.M. had told them that Campos touched her "inside her vagina, " and also "on her butt." Id. Campos denied that he did so. Id. at 498. The officers said: "You need to speak with the truth. This is your last opportunity. Because the D.A. makes the decision. But if you lie to us and that evidence, we're going . . . we're going to send it and the other thing that you don't say, will look real bad for you." Id. at 501-02. The officers told Campos they were confident that "your DNA, your finger prints - your normal finger prints and the ones that have your DNA - are going to be on the body of that girl." Id. at 503-04. Campos nevertheless continued to deny touching K.M. in an inappropriate place. Id. at 502-03. The officers then told him that if the results inside the envelope were blue, this would mean the results were positive. Id. at 504.

         Then the officers opened the enveloped and announced: "They're blue. Okay, so you're lying to us. You have to tell us the, the truth." Id. at 505. Campos continued strenuously to deny touching K.M.'s genitals. Id. at 505. They said to Campos: "But this is here, it doesn't lie. This doesn't tell us lies, okay. What motive - this is the truth. So you're going to tell me that you didn't do anything and the D.A. is going to see this, what's he going to say? That it's - you're lying." Id. at 506.

         Campos continued to insist he did not touch K.M.'s genitals. Id. at 507. In an effort to get Campos to reconcile the allegedly irrefutable proof that he'd touched K.M.'s genitals with his story that he did not molest her, the officers introduced the possibility that he'd touched her there by accident: "So . . . possibly [it] was an accident that you touched her down there?" Id. at 508; see also Id . at 505 ("Or . . . maybe it was something that was [an] accident."). When Campos continued to resist the idea that he touched K.M.'s genitals, even accidentally, the officers said: "The scientists already have your DNA. If you lie to me, the D.A. isn't going to like that you're lying to me, okay." Id. at 508-09. Nevertheless, when the officers again inquired whether Campos touched K.M. "in her intimate part, " Campos repeatedly responded, "no, no." Id. at 511; see also Id . at 507, 508, 513, 515.

         At this point it bears noting that the written transcript does not tell the full story of the interrogation. The transcript itself is jumbled, but the video and audio show just how much confusion reigned during the interrogation. The officers were speaking to Campos quickly and loudly. They were often speaking over one another - one in English and the other in Spanish. Some of DeLorenzo's English questions and statements were translated to Spanish by Perez; others were not. When Campos speaks, it is difficult to determine which question or comment he is responding to, because the questions and comments come in such rapid fire succession, with people talking over one another, in different languages. And often when Campos tried to deny touching K.M.'s genitals, the officers often did not let him speak, quickly interrupting him to insist that his response was inconsistent with the scientific evidence and would create problems with the district attorney.

         In any event, Campos eventually began to struggle to reconcile the irrefutable scientific evidence (which he clearly believed existed) with his insistence that he did not touch K.M.'s genitals. He began (at the officers' invitation) to discuss the concept of accidentally touching K.M.'s skin, while continuing to deny touching her on or near her genitals under her clothes. Id. at 508. For example, at one point Campos said, "maybe I accidentally put my hands inside, " but seconds later it became clear he was trying to say that perhaps he touched K.M.'s back underneath her clothes as he was pushing her away from a baby he was holding and that K.M was trying to kiss. 3 CT, Dkt. No. 14-6, at 520. All the while, Campos referred back to the evidence that the officers continued to insist was irrefutable, saying things like, "that's why my hand evidence comes up, " and "You've already found my finger prints." Id. at 514, 523. The officers were not satisfied with Campos' answers, however, and when he continued to deny he had touched her inappropriately, the officers forcefully responded, "No, no, no. We want to know the truth." Id. at 516; see also Id . at 519. Eventually, in response to the officers' continued insistence that the evidence was irrefutable and that he must tell a "truth" consistent with that evidence, Campos appeared (although it's difficult to know for sure, given the chaotic nature of the interrogation) to allow for the possibility that he could have accidentally touched K.M.'s genitals under her clothes. Id. at 521. At one point the officers asked, "is that possible that when you pushed her it entered from above?" "Maybe, " Campos responded. Id. at 536. They asked, "could it possibly have been just like that?" Campos responded, "Maybe, I don't [k]now." Id. at 537. They asked, "But it was an accident[?]" Campos responded, "Maybe yes." Id.

         Shortly thereafter, Campos stated he needed an attorney, and the officers terminated the interrogation. Id. at 539. He was charged with two counts of sexual penetration with a child ten years of age or younger, in violation of California Penal Code § 288.7(b), and five counts of committing a lewd or lascivious act on a child under 14 years of age, in violation of California Penal Code § 288(a). 1 CT, Dkt. No. 14-1, at 72-76.


         Campos moved to suppress the statements he made during the interrogation on the ground that they were involuntarily made. He argued that he was unsophisticated and that he had no prior experience with law enforcement. 2 CT, Dkt. No. 14-2, at 137. He contended that, in light of his personal characteristics and in response to the interrogation tactics used against him, he was unable to resist allowing for the possibility that he could have accidentally touched K.M. in an inappropriate place. Id. at 147.

         The trial judge denied the motion. Noting that Campos was 60 years old, she said: "Being that age myself, I don't see this as impairment. So I don't see that as a characteristic that is a detriment to him." 6 RT, Dkt. No. 15-6, at 1531. The trial judge also noted that Campos had "been in the workforce for 17 years, " and had "raised five children." Id. In light of this, she appeared to conclude that Campos was not so unsophisticated as to warrant a change in the way she would normally analyze an interrogation: "So in looking at the characteristics of the accused himself, I don't think that there is anything of detriment that - that could overcome his will looking at only that factor or those set of factors separately." Id. at 1531-32.

         The trial judge then turned to the details of the interrogation itself. She concluded that the officers' repeated insistence that the district attorney would react badly unless Campos told "the truth" was not problematic, because Campos never indicated, during the interrogation, that his statements were motivated by a desire to avoid upsetting the district attorney. Id. at 1533-34. Nor, the trial judge reasoned, is it improper for police officers to use "loud, aggressive, accusatory" interrogation tactics. Id. at 1534.

         The jury convicted Campos of one count of committing a lewd or lascivious act on a child under fourteen, in violation of California Penal Code § 288(a), and one count of misdemeanor battery, in violation of California Penal Code § 242 and § 243(a), a lesser-included offense of one of the sexual battery charges. 3 CT, Dkt. No. 14-6, at 570-87. The jury acquitted him of all other counts and lesser-included offenses. Id.

         The Sixth District Court of Appeal upheld Campos' convictions in a 2:1 decision. On the admissibility of Campos' statements, the majority began by reciting the correct standard - namely, that a suspect's statement is involuntary if, considering the totality of the circumstances (including his personal characteristics and the details of the interrogation), his will was overborne. Cal.Ct.App. Opinion, Dkt. No. 17-4, at 11-12. Then the majority reached the following conclusion about Campos' personal characteristics:

Regarding defendant, at 60 years old he was neither so old nor so young as to make him particularly susceptible to coercion. There was also no evidence defendant suffered from any mental or physical disability that might make him more susceptible to coercive influence. Defendant's level of sophistication is inconclusive because while he had no prior history with police, he raised five children and was a member of the workforce for a number of years. Finally, we agree with the trial court that defendant did not appear fearful during the interrogation ...

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