Van Hook v. Anderson, 03-4207.

• Decision Date: 24 May 2007
• Docket Number: No. 03-4207.,03-4207.
• Citation: 488 F.3d 411
• Parties: Robert J. VAN HOOK, Petitioner-Appellant, v. Carl S. ANDERSON, Warden, Respondent-Appellee.
• Court: U.S. Court of Appeals — Sixth Circuit

488 F.3d 411

Robert J. VAN HOOK, Petitioner-Appellant, v. Carl S. ANDERSON, Warden, Respondent-Appellee.

No. 03-4207.

United States Court of Appeals, Sixth Circuit.

Argued: December 6, 2006.

Decided and Filed: May 24, 2007.

ARGUED: Keith A. Yeazel, Columbus, Ohio, for Appellant. Diane R. Brey, Office of the Attorney General of Ohio, Columbus, Ohio, for Appellee. ON BRIEF: Keith A. Yeazel, James D. Owen, Columbus, Ohio, for Appellant. Diane R. Brey, Stephen P. Carney, Stephen E. Maher, Charles L. Wille, Office of the Attorney General of Ohio, Columbus, Ohio, for Appellee.

Before: BOGGS, Chief Judge; MERRITT, MARTIN, BATCHELDER, DAUGHTREY, MOORE, COLE, CLAY, GILMAN, GIBBONS, ROGERS, SUTTON, COOK, McKEAGUE, and GRIFFIN, Circuit Judges.

McKEAGUE, J., delivered the opinion of the court, in which BOGGS, C.J., BATCHELDER, GIBBONS, ROGERS, SUTTON, COOK and GRIFFIN, JJ., joined. COLE, J. (pp. 428-37), delivered a separate dissenting opinion, in which MERRITT, MARTIN, DAUGHTREY, MOORE, CLAY, and GILMAN, JJ., joined. MERRITT (pp. 437-40) and MARTIN (pp. 440-41), JJ., also delivered separate dissenting opinions, with MARTIN, DAUGHTREY, MOORE, COLE, and CLAY, JJ., joining in Judge Merritt's dissent.

OPINION

McKEAGUE, Circuit Judge.

Following the arrest of a suspect, the police advise him of his rights outlined in Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). The suspect asks for a lawyer. Under Edwards v. Arizona, 451 U.S. 477, 484-85, 101 S.Ct. 1880, 68 L.Ed.2d 378 (1981), all questioning must then stop (a) until a lawyer has been provided, or (b) unless the suspect "himself" initiates a discussion. Later, police talk to the suspect's mother (or a close friend, sibling, etc.), and, based on that conversation, they believe that the suspect now wants to talk with them without a lawyer. Are they permitted to approach the suspect and inquire whether he now wants to talk, based solely on the discussion with the mother? Or, rather, are they precluded from acting on that information because it was not communicated to them directly by the suspect? Today we join several of our sister circuits in holding that the police can make the limited inquiry without running afoul of Edwards.

I

Petitioner Robert Van Hook went to a Cincinnati bar patronized by male homosexuals in February 1985. He met the victim, David Self, and the two left together for Self's apartment. Once at the apartment, and after Self approached Van Hook in a sexual manner, Van Hook strangled Self to the point of unconsciousness. Using a paring knife from the kitchen, Van Hook repeatedly stabbed Self in the head and abdomen. He attempted unsuccessfully to sever the head from the body. He stabbed so violently that he created a large cavity in Self's body, exposing several internal organs. At one point, he tried to pierce Self's heart. In a final act against Self, Van Hook stuffed several items, including the paring knife, into the gaping cavity and left them there. He proceeded to take several items from Self's apartment and fled.

Van Hook eventually made his way to Ft. Lauderdale, Florida, where he was arrested two months later by local police. The police read him his Miranda rights. Although initially agreeing to talk, Van Hook told police, "[M]aybe I should have an attorney present." JA 5462. The officers, having understood him to be asking for a lawyer, did not further question him about the murder.¹

Later that day, Cincinnati Police Detective William Davis came to Ft. Lauderdale to facilitate Van Hook's extradition and transportation back to Ohio. Van Hook had not yet been provided with counsel. After talking with the suspect's mother, Det. Davis believed that Van Hook might want to talk to police about the murder. On first engaging Van Hook, Det. Davis discussed the matter of extradition and confirmed that Van Hook wished to waive any objection to extradition. The detective then told Van Hook that they "had a lot to talk about," but that they "could not talk . . . unless he himself wanted to make a statement." JA 3789. "[A]t that point, [Van Hook] indicated he had talked to his mother, and that she had told him just to tell the truth, and he wanted to make a statement." Id. After having his Miranda rights read to him again, and waiving them, Van Hook gave a full and graphic confession.

A grand jury returned an indictment charging Van Hook with aggravated murder and aggravated robbery. Prior to trial, defense counsel moved to suppress the confession. Finding that Van Hook had invoked his right to have counsel present but then had reinitiated discussions with police, the Ohio trial court admitted the confession. At trial, Van Hook never denied killing Self, but instead claimed temporary insanity. A three-judge panel rejected his defense, convicted him of aggravated murder with a death specification and aggravated robbery and sentenced him to death.

After being denied any relief in the state courts on direct appeal, see State v. Van Hook, 39 Ohio St.3d 256, 530 N.E.2d 883 (1988), cert. denied, 489 U.S. 1100, 109 S.Ct. 1578, 103 L.Ed.2d 944 (1989), and on collateral review, Van Hook sought a writ of habeas corpus in federal district court. He raised multiple claims of error. The district court denied the petition on all claims. On appeal, a panel of this court reversed the district court's judgment on Van Hook's Fifth Amendment claim, concluding, as a matter of law, that a suspect could not initiate discussions with police through a third party; rather, the suspect, and only the suspect "himself," could "initiate the conversation." Van Hook v. Anderson, 444 F.3d 830, 836 (6th Cir.2006) (vacated). The panel declined to address the factual question of what Van Hook's mother said to Det. Davis that led him to believe Van Hook might want to talk with him. Id. It further declined to reach Van Hook's remaining claims for relief. On the warden's petition, the court decided to vacate the panel's opinion and hear the appeal en banc.

II

Van Hook sought habeas relief more than a year before the effective date of the Antiterrorism and Effective Death Penalty Act of 1996, Pub.L. No. 104-132, 110 Stat 1214 (the "AEDPA"). Thus, we review his petition under pre-AEDPA habeas law. Lindh v. Murphy, 521 U.S. 320, 326-27, 117 S.Ct. 2059, 138 L.Ed.2d 481 (1997). A "high measure of deference" is owed to the factual findings of state courts. Sumner v. Mata, 455 U.S. 591, 598, 102 S.Ct. 1303, 71 L.Ed.2d 480 (1982) (citing the pre-AEDPA version of 28 U.S.C. § 2254(d)); see also Mapes v. Coyle, 171 F.3d 408, 413 (6th Cir.1999) (explaining that state court findings of fact are presumed correct unless rebutted by clear and convincing evidence); Lundy v. Campbell, 888 F.2d 467, 469 (6th Cir.1989) (noting that federal courts must give "complete deference to evidence-supported state court findings of fact"). On the other hand, we review questions of law, as well as mixed questions of law and fact, de novo. Mapes, 171 F.3d at 413. Whether a suspect clearly and unequivocally asked for counsel, and whether the suspect initiated discussions with police after asking for counsel, are ultimately legal questions. United States v. Whaley, 13 F.3d 963, 966, 968 (6th Cir. 1994). The underlying questions of "what happened"—i.e., "basic, primary, or historical facts"—are, however, findings of fact that are presumed correct unless rebutted with clear and convincing evidence. Thompson v. Keohane, 516 U.S. 99, 110-13, 116 S.Ct. 457, 133 L.Ed.2d 383 (1995); cf. Whaley, 13 F.3d at 968 ("While we accept, unless clearly erroneous, the facts that the district court found, whether those facts together constitute an `initiation' under Edwards is a legal question we review de novo.").

III

A

Van Hook contends that his confession to the murder of David Self should have been suppressed under Edwards. As guaranteed by the Fifth Amendment to the federal Constitution, "[n]o person . . . shall be compelled in any criminal case to be a witness against himself." U.S. Const. amend. V. Of course, "[f]reedom of choice is not a stranger to the constitutional design of procedural protections for a defendant in a criminal proceeding." Faretta v. California, 422 U.S. 806, 834 n. 45, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975). A criminal suspect is free to offer a confession to authorities, subject to special procedural protections.

"[T]he Fifth Amendment right against self-incrimination and the Due Process Clause of the Fourteenth Amendment" require "that a confession be voluntary to be admitted into evidence." Dickerson v. United States, 530 U.S. 428, 433, 120 S.Ct. 2326, 147 L.Ed.2d 405 (2000) (citations omitted). "[T]he advent of modern custodial police interrogation brought with it an increased concern about confessions obtained by coercion." Id. at 434-35, 120 S.Ct. 2326 (citation omitted). To address this concern, the Supreme Court "laid down concrete constitutional guidelines for law enforcement agencies and courts to follow," id. at 435, 120 S.Ct. 2326 (internal quotation marks omitted), including the procedures announced in Miranda and extended in Edwards.

The rule of Edwards—a suspect who is in custody and has asked for a lawyer must not be subject to further interrogation² until a lawyer has been provided or unless the suspect initiates a discussion—is "a corollary to Miranda's admonition that if the individual states that he wants an attorney, the interrogation must cease until an attorney is present." Arizona v. Roberson, 486 U.S. 675, 680, 108 S.Ct. 2093, 100 L.Ed.2d 704 (1988) (internal quotation marks and brackets omitted). It "is designed to prevent police from badgering a defendant into waiving his previously asserted Miranda rights." Davis, 512 U.S. at 458, 114 S.Ct. 2350 (internal quotation marks omitted). "In the absence of such a bright-line prohibition, the authorities through `badgering' or `overreaching'—explicit or subtle, deliberate or unintentional—might otherwise...