Henry v. Kernan et al, 98-15768

• Citation: 197 F.3d 1021
• Decision Date: 25 October 1999
• Docket Number: No. 98-15768,98-15768
• Parties: (9th Cir. 1999) BOBBY HENRY, Petitioner-Appellant, v. PEGGY KERNAN, Warden; DANIEL E. LUNGREN, Attorney General, Respondents-Appellees
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

Page 1021

197 F.3d 1021 (9th Cir. 1999)

BOBBY HENRY, Petitioner-Appellant, v. PEGGY KERNAN, Warden; DANIEL E. LUNGREN, Attorney General, Respondents-Appellees.

No. 98-15768

UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

Argued and Submitted January 12, 1999

Filed May 26, 1999

Amended October 25, 1999

[Copyrighted Material Omitted]

COUNSEL: Gregory W. Baugher, Assistant Attorney General, Sacramento, California, for the respondents-appellees.

Connie M. Alvarez, Assistant Federal Defender, Sacramento, California, for the petitioner-appellant.

Appeal from the United States District Court for the Eastern District of California; David F. Levi, District Judge, Presiding. D.C. No. CV 95-02055-DAD

Before: Joseph T. Sneed, A. Wallace Tashima, and Barry G. Silverman, Circuit Judges.

ORDER

The opinion filed May 26, 1999, is amended as follows:

On slip opinion page 5056, following the second full paragraph (177 F.3d at 1158, following the first full paragraph, left-hand column), immediately preceding Part II.B, add the following four (4) paragraphs:

The State contends, as its fallback position, that Henry's post-Miranda statements did not lose their voluntariness until after Henry's inquiry of whether he was "supposed to keep talking without an attorney," was interrupted by Detective White's statement, "Listen, what you tell us we can't use against you right now . . . We'd just would like to know." By that time, Henry had already made a series of admissions. We recognize, of course, that a post-Miranda voluntary statement may be used for impeachment purposes. See, e.g., Harris v. New York, 401 U.S. 222, 226 (1971); Cooper, 963 F.2d at 1250. Even assuming, however, that the State's fallback contention would ordinarily have convincing force, there are two factors in this case which, when combined, distinguish this case from past cases.

The first factor is that the sheriff's officers set out in a deliberate course of action to violate Miranda. As the State has acknowledged, "it has been conceded that the detectives knew they were violating Miranda when they continued questioning the petitioner after he requested counsel . . . ." (State's Petition for Rehearing and Suggestion for Rehearing En Banc at 2-3.) The State's concession is supported by the record. Thus, like Cooper, this case is also distinguishable from Harris in that

Harris was a case where no claim [was made] . . . that the police knowingly engaged in calculated misconduct in order to secure the disputed evidence. Moreover, it does not appear that the purpose of the police in Harris in securing the disputed evidence was to impinge on the suspect's right to remain silent or his right to testify. In these respects, Harris is manifestly distinguishable and thus inapposite to the present case.

Cooper, 963 F.2d at 1249 (brackets in the original) (internal quotation marks omitted) (citing Harris, 401 U.S. at 224).

The second factor is that in California out-of-court statements admitted for impeachment are also admitted for the truth of the matters asserted therein, i.e., also admitted for substantive purposes. See Cal. Evid. Code SS1220, 1235. Thus, in California, out-of-court statements admitted for impeachment are, in fact, admitted for the purpose of proving the defendant's guilt. No limiting instruction was given in this case that Henry's post-Miranda statements could be used only to assess Henry's credibility, the classic use of prior inconsistent statements for impeachment, but not to establish the truth of the matters asserted therein. In fact, in this case, the primary evidence which established Henry's motive and rebutted his claim of self-defense was Henry's post-Miranda statements. Thus, it is a misnomer to say that Henry's post-Miranda statements were admitted for "impeachment." Their primary use was to establish an essential element of the crime charged, as the prosecution argued.

Based on the specific facts of this case, we conclude that the State should not be permitted to use post-Miranda statements where the officers set out deliberately to violate a suspect's Miranda rights and the evidence obtained in violation of Miranda is used to prove the defendant's guilt, even though it is admitted in the guise of impeachment. Thus, for this further reason, we conclude that the state trial court erred in permitting the prosecution to use Henry's post-Miranda statements for the truth of the matters asserted therein, as well as for impeachment as a prior inconsistent statement.

With the foregoing amendment, the panel has voted unanimously to deny the petition for panel rehearing. Judges Tashima and Silverman vote to deny the petition for rehearing en banc and Judge Sneed so recommends. The full court has been advised of the petition for rehearing en banc and no judge of the court has requested a vote on en banc rehearing. See Fed. R. App. P. 35(f).

The petition for rehearing and the petition for rehearing en banc are denied.

OPINION

TASHIMA, Circuit Judge:

We must decide whether a confession concededly obtained in violation of Miranda¹ was involuntarily made so as to prohibit its use for impeachment purposes at trial. Contrary to the recommendation of the magistrate judge, to whom the case had been referred, the district court denied habeas relief to Bobby Henry ("Henry"), finding that his Fifth Amendment privilege against self-incrimination and his constitutional right to privacy were not violated. We have jurisdiction pursuant to 28 U.S.C. SS 1291 and 2253, and we reverse and remand.

I.

Henry was arrested for killing Bill Withrow after he turned himself in to the Sacramento County Sheriff's Department. Following his arrest, Henry was questioned for several hours by Detectives White and Machen. The two detectives continued to interrogate Henry after he requested counsel. In response to the detectives' further questioning, Henry made a detailed confession.

An information was filed in the Sacramento County Superior Court charging Henry with murder. The first trial ended in a mistrial after the jury deadlocked. At the second trial, a hearing was held to determine whether Henry's post-Miranda statements to the detectives were admissible for impeachment purposes. Henry sought to have his statements suppressed on the ground that the questioning violated his Fifth Amendment right to silence and his right to the assistance of counsel. The state court agreed that the statements violated Miranda and excluded them from use during the prosecution's case-inchief. It found, however, that the statements were voluntary and therefore could be used for impeachment purposes if Henry testified.

Some months prior to the killing, Henry, a civilian employee at McClellan Air Force Base, was referred by his supervisor to Dr. Sander, an occupational health physician on the base. Henry confided in Dr. Sander that he felt like killing a number of people, including Withrow, who had allegedly cheated Henry out of his life savings. At the time of his discussions with Dr. Sander, Henry believed him to be the "base shrink."

At the state court hearing, Henry also sought to exclude Dr. Sander's testimony on the ground that it was covered under the California psychotherapist-patient privilege, Cal. Evid. Code S 1014. Whether Henry had a reasonable belief that Dr. Sander was a psychotherapist was a central issue at the hearing. The trial court ruled that the psychotherapist-patient privilege did not apply because it was unreasonable for Henry to believe that Dr. Sander was a psychotherapist.

Henry testified that he acted in self defense and the post arrest statements were introduced to impeach him during cross-examination. The prosecution subsequently called Detective Machen as a rebuttal witness and played the entire tape recording of Henry's interrogation for the jury. Each juror was also provided with a copy of the transcript of the interview. Henry was convicted of second degree murder.

After exhausting his claims in state court, Henry filed the instant petition for habeas relief under 28 U.S.C.S 2254. He contends that: (1) his statements to police interrogators were elicited in violation of the Fifth Amendment, were involuntary, and were improperly admitted for any purpose at trial; and (2) the trial court's admission of his statements to his doctor violated his constitutional right to privacy. The district court denied his petition for habeas corpus and issued a certificate of probable cause.² Henry timely appealed.

II. Fifth Amendment Claim

The district court's decision to grant or deny aS 2254 habeas petition is reviewed de novo. See Eslaminia v. White, 136 F.3d 1234, 1236 (9th Cir. 1998). Findings of fact relevant to the district court's decision are reviewed for clear error. See Moran v. McDaniel, 80 F.3d 1261, 1268 (9th Cir. 1996). State court factual determinations are entitled to a presumption of correctness under 28 U.S.C. S 2254(d). See Villafuerte v. Stewart, 111 F.3d 616, 626 (9th Cir. 1997), cert. denied, 118 S. Ct. 860 (1998); Collazo v. Estelle, 940 F.2d 411, 416 (9th Cir. 1991) (en banc).

To prevail on his Fifth Amendment claim, Henry must demonstrate that: (1) his statements were obtained by the police in violation of Miranda; (2) the state court committed error in permitting the prosecution to use these improper statements; and (3) the error had a substantial and harmful influence on the jury's determination of its verdict. See Pope v. Zenon, 69 F.3d 1018, 1020 (9th Cir. 1996). Post-Miranda confessions which are found to be involuntary may not be admitted for any purposes, including impeachment. See United States v. Polanco, 93 F.3d 555, 560 (9th Cir. 1996). Accordingly, we must first determine whether Henry's statements to the police were voluntary.

A. Voluntariness of confession.

It is uncontested that the police officers in this case deliberately violated Henry's Miranda rights by continuing with their interrogation after he...